SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 10-4052-SR
DATE: 2012-02-16

RE: Maureen Corrine Leblanc
Leo Leblanc, Plaintiffs

and:

Fortis Properties Corporation O/A Holiday Inn-Cambridge, Respondent

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: Richard M. Van Buskirk, Counsel for the Plaintiffs
No one appearing for the Defendant

HEARD: February 14, 2012

ENDORSEMENT

[ 1 ] The action was commenced January 21, 2010 and the Trial Record filed September 7, 2010, the Defendant never having appeared and hence being put into default. The matter comes before me for an assessment of damages. The Plaintiff, Maureen Leblanc, claims damages for personal injuries suffered as a result of a slip and fall which occurred on January 22, 2008, in the lobby of the Defendant’s property, the Holiday Inn in Cambridge. Her husband, Leo Leblanc “tags along” with a claim under the Family Law Act for loss of companionship. Maureen’s claim is for $60,000, while Leo’s claim is for $12,000. In addition to these claims there are the claims for special damages by both of the parties.

[ 2 ] I’m satisfied with Maureen’s claim for special damages involving the lift chair in the amount of $1,599.99. Leo has a claim for three days lost wages in the amount of $636 and whether or not this is an amount that can be tucked into his Family Law Act claim or whether it is simply special damages, I would allow that too, so that is an allowable amount of $2,235.99 for special damages.

[ 3 ] The big question here has to do with general damages for Maureen’s injured knee.

[ 4 ] Maureen is a 60 year old woman (56 at the time of the accident). At the time of the accident she was not working because she was on a WSIB rehabilitation program at the Cambridge Holiday Inn. The program was meant to last six weeks and to deal with the effects of carpal tunnel surgery which she testified went bad.

[ 5 ] On her first day at the hotel she slipped in the lobby and smashed her right knee on the floor. She was taken by ambulance to Cambridge Memorial Hospital where she was seen in emergency and had x-rays taken of her right knee. Apparently the x-rays didn’t show any abnormalities or structural damage. And it is conceded that Maureen had some earlier osteoarthritic difficulties with her knees. However, both she and her husband testified that before this incident in the hotel Maureen had unrestricted movement and full enjoyment. At trial she still complained of the difficulty with her knee and the evidence showed that as well as these complaints with the right knee, she had developed a Baker’s cyst which erupted under the left knee. So she still has a lot of difficulty walking and I accept that. At first she says she had a hard time sleeping and only got 4-5 hours a night because of her knee pain and that the burning sensation was always there. She says that condition still persists. And she still only gets 4-5 hours sleep. The difficulty with her knee has prevented her from working in the garden or cutting the lawn. She can’t kneel and can’t even bend down.

[ 6 ] She testified that she used to walk five kilometres a day and can no longer do that. Her knee still burns at the touch. Originally, she had two weeks of prescription painkillers, but now isn’t on any and didn’t take anything after those first two weeks.

[ 7 ] She saw her family doctor and for a period went to physiotherapy in St. Mary’s, Ontario. The Status Report at Tab 3 of the first exhibit shows that she had seven visits with the physiotherapist and on objective examination, at the time of her initial assessment on December 1, 2008, almost a year after the accident, she complained of her right knee giving way and her left knee pain persisting. Both of her knees produced pain and difficulties with movement. The report says that she was still in pain during her last treatment on January 19, 2009.

[ 8 ] Unfortunately, the Plaintiff has not marshalled sufficient evidence by way of medical opinions to demonstrate causation in respect of this protracted period of pain, nor is there a proper diagnosis or prognosis before me. What seems to be presenting here is the aggravation of a pre-existing injury.

[ 9 ] While Maureen has tried walking, there hasn’t been progress. I heard evidence of her attending for a time at a swimming pool in the complex in which they lived, but that form of exercise hasn’t been continued either.

[ 10 ] So, I am left with no ongoing treatment for the injury, no ongoing medication, no program of exercise or self-help by the Plaintiff.

[ 11 ] She and her husband seem to be a wonderful couple who have been married 43 years. Mr. Leblanc testified in support of his wife that in the first few weeks after the incident Maureen didn’t get around much. He was proud of her toughness and the fact that she used to do everything, the gardens, the eaves, the windows and the fact that they used to walk about a mile around the park and fish on the weekends when they were up north. On his evidence, she does very little walking. She can’t walk in a grocery store without a cart. He helps with the dishwasher and the laundry and they’ve had to hire someone to do the lawns. He candidly admits that he does more since he retired some 2 ½ years ago. For half of the year they are going to live in a park model trailer in Wiarton and then in the south Florida or Texas. While Maureen testified that she doesn’t drive much because she can’t apply pressure to the brake pedal, Mr. Leblanc testified that he does most of the driving because he is retired.

[ 12 ] I asked Mr. Van Buskirk for case law support for the claims that he is making. He gave me digests of two which he says are the lower and the higher end of general damages. $28,000 for general damages was awarded in the case of Battagliola v. Wal-Mart Canada Corp. in the British Columbia Supreme Court in 2011. There was a small component in that case for the cost of future care, something that is not claimed here. The other case given to me by Mr. Van Buskirk, was the case of Donnelly v. Durham, again in the British Columbia Supreme Court from 2009 where $55,000 in general damages were awarded, as well as $8,650 for the cost of future care. But that case was a rear-end motor vehicle collision where the Plaintiff was diagnosed as having soft tissue injuries to her neck, back, right hip and right knee, with pain radiating into her buttocks, thigh and foot.

[ 13 ] Unfortunately, Plaintiffs’ counsel did not marshall the evidence in such a way that I had the assistance of any expert opinion as to causation or the extent of the injuries that such a fall, which resulted in no structural damage as shown on the x-ray, could demonstrate. Nor has anyone assisted me in separating the difficulties caused by the Plaintiff’s left knee with respect to her movement and enjoyment of life. Perhaps had the evidence been better marshalled I would have had some more clear way to make a comparison of the few of the two British Columbia cases presented to me. It is interesting that no cases from Ontario were offered.

[ 14 ] Mr. Van Burskirk also invited me to make an interesting assessment by assessing the amount of general damages per year up till the trial date. For example, he said you can get to $60,000 in general damages by simply saying the claim was worth $15,000 per year. But that begs the question and does not address the issue of the indefinite nature of these injuries. Surely after four years if the symptoms persist, the Plaintiff is asserting that there isn’t any likelihood of them improving and meeting it out by the year doesn’t answer the question.

[ 15 ] I am not satisfied on the evidence that the claims are worth anything near that which have been claimed by the Plaintiffs. Accordingly, I would award general damages for Maureen’s pain and suffering in the amount of $15,000 and would award Leo an amount for his loss of companionship in the amount of $3,000.

[ 16 ] Mr. Van Buskirk also asked for costs. He did not offer to me a Form 57B Costs Outline as is required, but instead relied on his Bill of Costs of the Plaintiffs. That Bill of Costs is based on a substantial indemnification, in the total amount of $8,667.05. I raised with Mr. Van Buskirk my concern about costs if the amount of damages that I awarded came in under the $25,000 limit of the Small Claims Court. He didn’t seem to have much concern with that and said that there were no limits set in the Small Claims Court. Clearly he’s wrong about that. Rule 19.02 of the Small Claims Court Rules sets out that any power to award costs is subject to section 29 of the Courts of Justice Act, which limits the amount of costs that may be awarded.

[ 17 ] Section 29 says this:

“An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15% of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.”

Well, there is no issue here about punishment. But there is a concern that matters find their way onto the correct court docket. My total award for general and special damages amounts to slightly more than $20,000.

[ 18 ] I have no difficulty with Mr. Van Buskirk’s claim for disbursements in the amount of $598.85, but this is not the case for substantial indemnity and I would otherwise fix the fees component of Mr. Van Buskirk’s costs claim at $3,500. I would also allow $455 for the HST on the fee component of the costs bill. So I would fix costs in the total amount of $4,553.85.

[ 19 ] In sum then, the Plaintiff Maureen shall have general damages in the amount of $15,000, the Plaintiff Leo shall have Family Law Act damages in the amount of $3,000. The parties shall have their special damages in the amount of $2,235.99, for a total of $20,235.99. And the Plaintiffs are entitled to costs in the total amount of $4,553.85.

P.J. Flynn J.

Released: February 16, 2012