ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-07-086123-00

DATE: 20130617

BETWEEN:

Brenda Shepstone, Chantel Shepstone, minor by her Litigation Guardian, Brenda Shepstone, and Shirley Shepstone

Plaintiffs

– and –

Troy Cook, Dennis Hickey, and Aviva Insurance Company of Canada

Defendants

Heikki Cox-Kikkajoon, for the Plaintiffs

Blair Nitchke, for the Defendants

HEARD: March 27, 2013

REASONS FOR DECISION

EDWARDS j.:

Overview

[1] On December 14, 2012, after approximately four weeks of trial commencing November 19, 2012, the jury returned its verdict awarding the plaintiff $7,500 in general damages and $7,500 for “future care expenses”.

[2] The action itself arises out of a motor vehicle accident which occurred on January 24, 2006. As such, it was anticipated that at the completion of the evidence, this court would be called upon to deal with what has often been called a threshold motion. With the completion of the evidence and after the jury verdict, the defence, in fact, did move to dismiss the entirety of the plaintiff’s claims, arguing that the plaintiff’s injuries did not pass the statutory threshold.

[3] I released my reasons with respect to the threshold motion on February 20, 2013. In my decision, I found that the plaintiff had not established that her claims resulted in a serious and permanent impairment of an important physical, mental or psychological function. As such, the claims for general damages and the future care expenses were dismissed.

[4] The plaintiff now moves for judgment, arguing that the threshold decision that I rendered on February 20, 2013, did not apply to “caregiver” expenses, which it is argued were inextricably subsumed under the heading “future care expenses”. Counsel for the plaintiff argues that future health care expenses include such items as attendant care and medical rehabilitation care, but does not include types of expenses, such as housekeeping or caregiver expenses.

The Facts

[5] In coming to the ultimate conclusion that I do with respect to the issue raised by plaintiff’s counsel, it is important to note that while the questions which were ultimately submitted to the jury for their determination were approved by this court, the actual drafting of the questions was done by both counsel. As such, counsel for the plaintiff must be deemed to have accepted the wording of question 9 which specifically states:

In what amount, if any, do you assess the value of Brenda’s future care expenses? (emphasis added)

[6] It is equally important to note that the jury was asked to separately assess the claim for the plaintiff’s past loss of housekeeping and home maintenance. For reasons that perhaps may be best understood by counsel, there was no separate question put to the jury with respect to the amount the jury was called upon to assess a potential claim for future caregiver expenses.

[7] Counsel for the plaintiff during the course of his closing argument to the jury, showed the jury a slide which was entitled “future care” on an overhead projector. On this slide, there were various headings of damages claimed, which included physiotherapy ($5,400), medication ($179/year = $5,633), double mattress ($500/year = $2,000), psychological treatments ($2,100), home exercise equipment/trainer ($3,780) and caregiving for one year ($18,250).

Position of the Plaintiff

[8] Counsel for the plaintiff argues that caregiver benefits are not health care expenses and therefore are not caught by the threshold decision. It is also argued by the plaintiff that this court must “give the “benefit of the doubt” to the plaintiff in this case”, particularly given that the defendant has the onus of establishing that the threshold legislation applies to the jury’s verdict. In that regard, it is conceded by plaintiff’s counsel that ordinarily the plaintiff has the burden of demonstrating that her case falls within the exceptions to the threshold. Plaintiff’s counsel argues that the issue raised by the motion that I am now called upon to decide is not whether the plaintiff’s case meets the threshold, but rather whether the threshold provisions of Bill 198 are applicable to the jury’s “ambiguous verdict” with respect to future care.

[9] During the course of argument, I suggested to both counsel that what this court was effectively being asked to do was inquire into what the jury intended to award when it made its award of $7,500 for “future care expenses”.

[10] Counsel for the plaintiff submits that the question put to the jury with respect to future care expenses “was inelegant, unclear, and the result of numerous reviews by both the plaintiff and the defendant’s lawyer”. It is therefore submitted on behalf of the plaintiff that this court must now accept that the jury’s verdict may contain caregiver benefits.

Position of the Defence

[11] Counsel for the defendants takes the position that the proper forum for the issues now raised in the plaintiffs’ motion is the Court of Appeal, as a trial judge does not have the jurisdiction to interpret a jury verdict. As an alternative argument, the defence takes the position that “caregiver” expenses may in fact be included within the definition of “health care” and as such, would be subject of the threshold decision. Finally, the defence argues that none of the jury award was in fact for future care giving and that the most logical interpretation of the jury’s award of future care expenses would be to attribute it to physiotherapy and psychological treatments which add up to exactly $7,500.

Analysis

[12] While the motion before this court is not one where the plaintiff seek to have this court substitute its own decision for that of the jury on grounds of perversity, the caselaw as it relates to the jurisdiction of a trial judge to deal with a jury verdict argued to be perverse is worth considering. It has been said on many occasions that a trial judge does not have the authority to declare a jury verdict to be perverse. See Loffredi v. Simonetti (1988), 29 CPC 2d 10 and Baboi v. Gregory (1986), 1986 2816 (ON SC), 56 OR 2d 175.

[13] A trial judge may only refuse to accept the verdict of the jury in circumstances where the trial judge concludes that there simply is no evidence to support the findings of the jury, or where the jury has given an answer to a question, which in law cannot provide a foundation for the judgment. The powers of a trial judge to deal with a verdict which it is argued is perverse, are not the powers afforded to the Court of Appeal. This is made abundantly clear in a recent decision of the Ontario Court of Appeal in Gentles v, Toronto (City) Non-Profit Housing Corp. 2010 ONCA 797, [2010] O.J. No. 5073, where at paragraph 115, R.G. Juriansz J.A. stated:

…once the trial judge was satisfied that he could proceed to entertain the motions for judgment on the jury’s answers, he was bound to decide those motions on the basis of those answers. He was wrong to embark on his own process of fact finding.

[14] There is nothing inconsistent, nor is there any ambiguity with respect to the answers rendered by the jury in response to the ten questions that were put to them for consideration. The jury was asked to make an award for future care expenses. Plaintiff’s counsel submitted to the jury various types of claims that fit within the question posed of what amount the jury was being asked to assess the plaintiff’s claim for future care expenses. As part of this claim, plaintiff’s counsel suggested the plaintiff be compensated for physiotherapy, medication, psychological treatment, home exercise equipment, a double mattress and caregiving expenses. This court has no ability to interpret or determine whether or not the jury intended to make any award for caregiving expenses. The jury made its award for future care expenses. It was open to plaintiff’s counsel to require the jury to answer a separate question that would have made it clear whether or not the jury was going to award anything for caregiving expenses. If such an award had then been made, this court would have been called upon to determine whether caregiving expenses fell within the exclusion of “health care” such that the threshold would apply.

[15] This court does not need to engage in the exercise of determining whether caregiver expenses are included or excluded from the term “health care” although in that regard, it is worth noting that the jurisprudence is far from clear as to whether caregiver expenses are in fact included or excluded from the term “health care”. For the purposes of the motion before this court, I have come to the conclusion that what plaintiff’s counsel is asking the court to do is to interpret the jury’s verdict after the verdict has been rendered. This court does not have the jurisdiction to interpret a jury verdict, particularly in circumstances where there was no argument made by plaintiff’s counsel with respect to the wording of the questions that were posed to the jury. It would be wrong and improper for this court to engage in a speculative exercise as to what the jury intended when it came back with its award of $7,500 for future care expenses. If there is a forum where such an argument may be made, it is not with a trial judge after the jury has rendered an unambiguous verdict in response to questions agreed upon by counsel. If there is such a forum, it is the Court of Appeal. Accordingly, the plaintiff’s motion is dismissed.

[16] If the parties cannot agree upon the costs of the motion, or for that matter, the costs of the trial, the parties are to submit written submissions limited to five (5) pages in length, with such submissions to be received by June 30, 2013.

Justice M.L. Edwards

Released: June 17, 2013