Court File and Parties

2023 ONSC 4108

Court File No.: CV-4405-00 and CV-18-4440-00 Date: 2023 06 17

Ontario Superior Court of Justice

Between: Kenisha Desmond, Plaintiff Lisa Bishop, for the Plaintiff

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Evan Hanna and Ronetya Yousuf, Defendants Keith Smockum, for the Defendants

Heard: June 16, 2023, in writing and orally

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Between: Shian Henry, Plaintiff Lisa Bishop, for the Plaintiff

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Evan Hanna and Ronetya Yousuf, Defendants Keith Smockum and S. Desai, for the Defendants

Heard: June 16, 2023, in writing and orally

Note: Not to be Uploaded to any Public Database or Released Publicly Until the Jury has Rendered its Verdict.

Note: This Endorsement has been amended to reflect factual corrections on which the parties made submissions on 19 June 2023. Those amended paragraphs are 25, 27, 29, and based on those amendments, the Charts were amended and entered at trial as exhibits.

Trial Ruling #4: Pollard Summary Charts as Exhibits

Trimble J.

The Motion

[1] During Ms. Pollard’s evidence with respect to Ms. Desmond, the parties agreed to reserve Exhibit 54 for Ms. Pollard’s summary chart of Future Care Costs, subject to it being edited in light of my ruling with respect to the plaintiff’s calling experts. The parties have not been able to agree on how to edit the chart. A similar disagreement arose with respect to Ms. Pollard’s summary chart of Future Care Costs with respect to Ms. Henry.

[2] I directed the parties to provide me with their written argument as to what should be included in each summary chart and ruled that I would make the decision based on written submissions.

[3] What follows is my general analysis, and my decision with respect to each chart. I attach the amended charts to be added as exhibits. Ms. Desmond’s is already Exhibit 54 to her phase of the trial. Ms. Henry’s shall be Exhibit 82 to her phase of the trial.

The Law

[4] Jurisprudence instructs that whether a question should go to the jury in a civil case is a question of there being “reasonable evidence” to allow a question of fact to go to the jury (see: M.B. v. 2014052 Ontario Ltd., (Deluxe Windows of Canada), 2012 ONCA 135 at para 51; Agha v. Munroe, 2022 ONSC 2508 at para 37; Day v. Haiderzadeh, 2017 ONSC 7319 at para 5).

[5] The question is what is that level of evidence? In Day, supra, at para. 5, the court referred to two cases. First, the court referred to M.B. at para. 51, in which the Ontario Court of Appeal said that the question of fact must be a reasonable one for the question to go to the jury, and there must be “reasonable evidence” on the point. The judge in Day also referred to Ayub v. Sun, 2016 ONSC 6598, at paras. 53 – 54 where the court, citing Walker v. Delic [2001] O.J. No. 1346 (S.C.J.), said that in order for a question to go to the jury there must be “some evidence on which a jury, acting judicially, in accordance with [the] judge’s instructions on the law could reasonably make a choice in arriving at a finding.”

[6] In M. B., the court refused to put a question to the jury where the evidence established only a “vague possibility”. This is not “reasonable evidence”. Presumably there the court made that finding because the plaintiff is required to put before the jury evidence that allows the jury to do something more than merely speculate (see: Agha, supra, at para. 53).

[7] The sufficiency of evidence required to permit the question to go to a jury is determined on a case-by-case basis (see: Loye v Bowers, 2019 ONSC 7198 at para. 44).

[8] Based on the foregoing, while the trial judge has a gatekeeping function, this gatekeeping function only requires the judge to weigh evidence in the most gross terms. It is not the judge’s job to determine whether the plaintiff has met its burden, for example. The threshold for the quality and quantity of evidence which would permit a question to be put to the jury is relatively low – sufficient that a properly instructed jury could make a finding on it without speculating. In determining whether the question can go to the jury, the trial judge must approach the issue in a more holistic and less precise manner than he or she would if deciding whether the plaintiff had met its burden. This is especially so with respect to future losses which only need to be proved on the basis of a real and substantial risk of occurring.

Analysis

Ms. Pollard’s Qualifications

[9] I qualified Ms. Pollard as an expert in future cost of care cost assessments. This is based on her examination in chief and cross examination on qualifications.

[10] In her examination in chief in cross-examination on her qualifications, Ms. Pollard said that in preparing her reports, she took the recommendations of the plaintiff’s healthcare providers and provided a cost to them. As a Certified Lifecare Planner and is a Case Manager, she would liaise between the healthcare providers, the client, and the market in order to design a plan (in the former case) and prepare the associated costs for and oversee the implementation of the plan (in both capacities) for the client.

[11] Ms. Pollard agreed that she was not a doctor, neurologist, orthopedic surgeon, or an occupational therapist or other kind of therapist.

[12] Ms. Pollard indicated that she maintained the database of the prices of various goods and services. She did not indicate that she maintained a database of common prescription drugs, their dosages, and the frequency with which they should be taken, nor with respect to common treatments or therapies and the frequency of them. She agreed that these issues are highly case specific or client specific.

[13] Based on the foregoing, Ms. Pollard is not qualified to provide an opinion with respect to those things which would normally require the recommendation of a qualified health care provider or doctor. This includes the prescription of specific medicines, the dose of those medicines, and the frequency with which they are to be taken; the prescription of medical devices; the necessity of the employment of an occupational, psychological, or other therapist, and the frequency with which the client might be required to see that therapist.

[14] Ms. Pollard has some expertise, as a Lifecare Planner, in what is “usually” prescribed or recommended either in terms of the use of a specialty drug or device, and/or the frequency with which the specialty, drug, or device ought to be used. She was not qualified in this trial, however, as a Life Care Planner. Further, Ms. Pollard acknowledged that what might be required by any specific client is highly fact and client specific. In other words, no two clients are alike.

[15] Applying the above principles, I turn now to the broad issues arising between counsel.

Reference to the doctors not called

[16] All references to doctors not called and their recommendations must be removed.

Treatment or drug, and frequency of treatment or dosage

[17] Ms. Pollard has no expertise, as I have qualified or, to opine on whether a client needs a specific drug, treatment or therapy, nor to advise on the frequency or dose of that drug, treatment, or therapy. Unless there is other evidence on theses issues from witnesses called who were qualified to provide those details, those references should be deleted. Ms. Pollard, as I have qualified her, has expertise to opine on unit cost.

[18] The exception to the foregoing is for such obvious treatments or medications such as over-the-counter pain medication.

[19] With respect to pain injections, evidence was led that theses might be necessary. Although Ms. Pollard is not qualified to determine what medication might be administered or in how many spots and with what frequency, she priced the per-shot price of Botox as the most expensive option, as she is entitled to do.

[20] By way of example, while Dr. Blitzer recommended medications for Ms. Desmond’s mood he did not give a clear indication of what those drugs are or should be, or the dose or frequency with which they would be taken. Dr. Wolf recommended increasing the dose of Ms. Desmond’s Cymbalta and mirtazapine but does not indicate how and to what level the dosage should be increased except to say, “as tolerated”.

[21] With respect to over-the-counter medicines, the fact that someone may take them when in pain is within the common sense of the jury, the cost per pill or tube of topical medicine may not be. Therefore Ms. Pollard’s providing a unit cost and annual cost based on maximum dosage is reasonable.

Orthotics

[22] This recommendation for Ms. Desmond is speculation based on Dr. Blitzer’s recommendation that Ms. Desmond have a biomechanical gait assessment. Whether orthotics are necessary part of that depends on the outcome of the gait assessment.

Knee Brace

[23] This recommendation is made in an OCF-18 for Ms. Desmond. Ms. Pollard is qualified to price it and determine the replacement date.

Occupational Therapy, Psychological Counselling, Family Counselling, Physiotherapy

[24] While experts opined on Ms. Henry’s and Ms. Desmond’s need for these various therapies, and while it is it within Ms. Pollard’s qualification to price the initial assessment fee and the basic fee for every attendance of thereafter, she is not qualified to opine with respect to the number of sessions that either Ms. Desmond or Ms. Henry will need, that decision being client and fact specific, and to be made by a health practitioner.

[25] Dr. Wolf’s recommendation in his report is that Ms. Henry required 12 to 16 sessions of cognitive behavioural therapy. In his evidence, he did not refer to numbers of therapy sessions.

Chronic Pain Program

[26] Many doctors recommended a multidisciplinary chronic pain program for each of the plaintiffs. No evidence was given, however, as to what these programs entailed, where one should be taken, whether they are all the same or there are differences, and if there are differences, which specific program each individual plaintiff should take. Ms. Pollard recognized that what any client requires is fact and client specific, and not withstanding that she is qualified to price the cost of such a program, there is no evidence about the specific program and specific cost for either plaintiff. Ms. Pollard is qualified to quote hourly rates for such assessments.

Family counselling

[27] Dr. West recommended it for Ms. Henry.

Fitness facility

[28] A gym membership is recommended by a number of experts including defence experts. Since the fee for gym membership is an annual fee and not based on a fee per visit, it is within Ms. Pollard’s expertise to price it.

Massage therapy

[29] There is evidence that doctors recommended massage therapy for Ms. Henry. Exhibit 35 contains invoices. The only evidence with respect to the frequency of such treatments is from Dr. Lai who said that massage therapy should be taken “as needed”. Ms. Pollard is qualified to set the hourly rates for massage therapy.

Personal trainer

[30] There is no basis for this in terms of medical recommendation. This is based on Ms. Pollard’s experience. While all experts agree that physical activity would be a good idea for the plaintiff as part of her recovery, no expert suggested a personal trainer.

ADL Tools, Cervical Pillow, Obus Form, Heating Pad, Mattress

[31] There is evidence to support these items for Ms. Henry. Ms. Pollard is qualified to price them and to set a replacement period for them.

Nutritionist

[32] Evidence was led that weight reduction is something that both plaintiffs would benefit from. Ms. Pollard’s recommendation for the number of sessions for a nutritionist is not based on any assessment of either of the plaintiffs nor on any medical recommendation. However, it is within Ms. Pollard’s expertise to price the initial one-time cost and the cost of each session of thereafter.

Vocational counselling

[33] Whether either plaintiff might need vocational counselling based on the evidence is within the power of the jury to assess. It is within Ms. Pollard’s expertise to price this on a session or hourly basis.

Heavy and seasonal housekeeping, outdoor maintenance and snow removal

[34] Whether either plaintiff can do heavy housekeeping, seasonal housekeeping, or maintenance work outside the house is a question that the jury is asked to answer. Whether assistance is required to do this work is also a question they are asked to answer. The jury will be asked to apply its common sense. It is within their purview to assess the evidence of the Plaintiffs with respect to these claims for damages and, based on their experience and common sense, determine the amount of work that should be allowed. Ms. Pollard is qualified to assess the costs and reasonable times based on the evidence regarding the Plaintiffs.

[35] There is evidence before the jury about the nature of that heady work with respect to both plaintiffs. It is open to the jury to decide what work the plaintiff’s can and cannot do how long that work might take if they cannot do it, and award damages if they feel it is warranted. Therefore, it is within Ms. Pollard’s expertise to provide an hourly rate for such services. It is within the jury’s purview to determine how many hours might be required. This is a question of the jury’s common sense.

Childcare allowance

[36] Dr. Blitzer expressed the view that Ms. Desmond has difficulty with some aspects of being a mother. There is evidence that Ms. Desmond had difficulty picking up and carrying her child, putting the child in the car seat, and, when an infant, holding the child while nursing. There is no recommendation by anyone that childcare assistance is required.

Management Fee

[37] There is no evidence that either Plaintiff requires the assistance of a case manager.

Conclusion

[38] Once the amended tables are prepared, the table with respect to Ms. Desmond will be entered at the appropriate exhibit number reserved for it, and the table with respect to Ms. Henry will be added as the next numbered exhibit to the list of exhibits.

Trimble J.

Released: June 17, 2023