Foniciello, et al. v. Bendall and Acculine, et al., 2016 ONSC 1119

CITATION: Foniciello, et al. v. Bendall and Acculine, et al., 2016 ONSC 1119

COURT FILE NO.: 50466/08

DATE: 2016/02/17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Joseph Foniciello, Maria Foniciello,

Mary Foniciello, Lucy Foniciello,

Tony Foniciello, Lindsay Foniciello, and Chelsey Price-Mullins, a Minor Plaintiff by her Litigation Guardian Mary Foniciello

Plaintiffs

• and -

James Bendall, Sandra Bendall,

1177020 Ontario Inc. o/a Acculine Pavement Markings, Acculine Road Markings and the Corporation of the City of London

Defendants

C. Richard and K. Book, for the Plaintiffs

J. Fitch and R. Khan, for the Defendants

HEARD: January 5-30, 2015, August 4-20, 2015, and November 23-24, 2015

The Honourable Justice J. R. Henderson

REASONS FOR JUDGMENT

[1] The plaintiffs claim damages arising out of a motor vehicle accident that occurred on August 19, 2006, when a motorcycle operated by the plaintiff, Joseph Foniciello (“Joe”), was struck by a van operated by the defendant, James Bendall (“Bendall”), at the intersection of Jalna Boulevard and Bradley Avenue in London, Ontario. At the time of the motor vehicle accident the defendant, 1177020 Ontario Inc. o/a Acculine Pavement Markings (“Acculine”), was working in the intersection making pavement markings.

[2] As a result of the motor vehicle accident, Joe sustained a serious traumatic brain injury that left him in a semi-conscious state for approximately five months. His injury is described as a diffuse axonal injury, with particular injuries to his frontal lobe and his temporal lobe. Joe has made remarkable improvements to date, but he will have permanent cognitive, intellectual, and behavioural impairments.

[3] The liability issues in this action were decided by a jury on April 2, 2014. The jury determined that liability for the motor vehicle accident should be apportioned 60% to Bendall and 40% to Acculine.

[4] The damages aspect of this action was heard without a jury. These Reasons for Judgment constitute my decision with respect to the damages issues.

OVERVIEW

[5] Joe was 44 years of age at the time of the motor vehicle accident and worked fulltime as a welder at the Ford Motor Company (“Ford”) plant in St. Thomas, Ontario. He lived by himself in St. Thomas.

[6] Joe is single, but he has two children from separate previous relationships, namely, Lindsay Foniciello (“Lindsay”) and Chelsey Price-Mullins (“Chelsey”), who were 16 and 12 years of age respectively as at the date of the accident. Joe exercised access visits with both of his children on alternate weekends.

[7] At the time of the motor vehicle accident, most of Joe’s family lived in Niagara Falls, Ontario. Joe’s parents were separated, and they lived at separate residences in Niagara Falls. Joe’s mother, Maria Foniciello (“Maria”), is a plaintiff in this action. On his access weekends Joe routinely took his children to visit at the homes of both his father and his mother.

[8] Joe is the third oldest of four siblings. The youngest sibling is the plaintiff Mary Foniciello (“Mary”), who was 38 years of age at the time of the accident. At all relevant times Mary lived with her mother, Maria, in Niagara Falls. Joe’s two older siblings, Lucy Foniciello (“Lucy”) and Tony Foniciello (“Tony”), lived in separate residences in Niagara Falls, Ontario. The claims in this action of Lucy and Tony have been withdrawn.

[9] Immediately after the motor vehicle accident, Joe was taken by ambulance to Victoria Hospital in London. Thereafter, Joe remained in a semi-conscious state in hospital for approximately five months. He was transferred from Victoria Hospital to St. Thomas Elgin Hospital to Parkwood Hospital in London and then to Chedoke Hospital in Hamilton. On January 9, 2007, Joe underwent surgery to insert a shunt into his head in order to relieve pressure on the brain. Shortly thereafter Joe regained consciousness.

[10] Joe remained in hospital under the care of health professionals until he was discharged on May 11, 2007. From that date until the present Joe has lived with his mother Maria and his sister Mary at Maria’s house in Niagara Falls.

[11] A rehabilitation team (“the rehab team”) was created to work with Joe immediately upon his discharge from hospital. The team was led by Dr. Sherrie Bieman-Copland (“Bieman-Copland”), a neuropsychologist, who has conducted weekly or biweekly counselling sessions with Joe since he was discharged from hospital.

[12] Also on the rehab team were a speech language pathologist (“SLP”), a physiotherapist, rehabilitation therapists (“RTs”), and an occupational therapist. Bieman-Copland and the occupational therapist, Demetrio Labella ("Labella"), developed treatment plans that were implemented by the RTs in their sessions with Joe.

[13] I accept that Mary has played a significant role in Joe’s rehabilitation. She is trained as a registered practical nurse, and she has obtained her qualifications as a naturopathic doctor. Mary has been primarily responsible for Joe’s home care since he was discharged from hospital. Further, Mary has acted as Joe’s attorney pursuant to a written Power of Attorney document that had been executed by Joe prior to the motor vehicle accident.

[14] Maria, Mary, and Joe continue to live in the same household in Niagara Falls. Mary continues to spend a great deal of her time caring for Joe in the home, but the present arrangement cannot likely continue for much longer as Mary has expressed a desire to move on with her life. Further, Mary also provides care for Maria, who is now 87 years of age and has begun to encounter her own health problems.

[15] At the present time Joe has no significant ongoing physical impairments. However, Joe continues to have serious cognitive, intellectual, and behavioural problems.

[16] Regarding his cognitive and intellectual problems, Joe has difficulty understanding complex thoughts, and has difficulty with thinking, reasoning, and mental processing. As a result, he requires regular direction and prompting from his caregivers. Joe also has difficulties with his memory, particularly his short term memory.

[17] Regarding behavioural problems, Joe has had periods of frustration, agitation, and confusion. In the past his emotional impulses have occasionally led to aggressive and destructive behaviour. However, when he is not agitated, Joe usually has a flat, unemotional presentation.

[18] The rehab team, through persistent repetition, has taught Joe to follow a series of routines that assist Joe in his activities of daily living. In addition, the rehab team has developed a variety of scripts for Joe’s use in everyday situations, and cues that remind Joe of events or routines. Joe now follows routines for such activities as getting up, getting dressed, buying groceries, and making meals. He uses scripts for social activities, golfing, and routine telephone calls. Using this system of routines and scripts, Joe has made good functional progress.

[19] The plaintiffs make the following claims for damages:

i. General damages;

ii. Loss of income;

iii. Past medical/rehabilitation expenses;

iv. Future medical/rehabilitation expenses;

v. Future attendant care expenses;

vi. Management Fee under the Substitute Decisions Act,1992;

vii. Family Law Act claims for Maria, Mary, Lindsay, and Chelsey.

[20] Acculine was the only defendant who participated in the damages aspect of this action. Counsel for Acculine does not dispute that Joe sustained a serious traumatic brain injury as a result of the motor vehicle accident, and that he still suffers from certain impairments as a result. However, Acculine contests the amount of the damages claimed by the plaintiffs.

GENERAL DAMAGES

A. General Principles Regarding General Damages

[21] General damages are awarded as compensation for pain and suffering, loss of amenities, and loss of enjoyment of life. General damages are not intended to repair or provide a salve for the wounds that have been caused by a tort feasor. See Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229 at p. 262.

[22] Both parties acknowledge that there should be a significant general damages award. The cap for general damages is currently estimated at approximately $362,000.00. Counsel for the plaintiffs submits that the award for general damages for Joe should be $300,000.00, and counsel for the defendant submits that it should be $200,000.00.

[23] Because the assessment of general damages is a comparative process, it is appropriate to compare Joe’s pre-accident circumstances to his post-accident circumstances.

B. The Evidence Regarding General Damages

[24] On the issue of general damages, I primarily rely on the evidence of Mary and Bieman-Copland. These witnesses spent large amounts of time with Joe over many years, and therefore their evidence was extensive and insightful. I also found both of these witnesses to be reliable and credible. Their testimony provided me with a clear picture of Joe’s circumstances.

[25] Mary, in particular, provided a great deal of helpful testimony. I thought that Mary was an honest and sincere witness. I find that she always had a good relationship with Joe. Moreover, since Joe’s discharge from hospital, Mary has provided hands on daily care for Joe that continues to date. Consequently, she was able to accurately describe Joe’s personality and lifestyle both before and after the accident.

[26] In addition, I rely on the evidence of the three RTs who testified at the trial, namely, Arlene Kerr-Martin (“Kerr-Martin”), Gordon Leenders (“Leenders”), and Stacy Yarrow (“Yarrow”). The evidence of Kerr-Martin was particularly helpful as she is the primary RT who has worked with Joe approximately four times per week since 2007. Further, I rely on the evidence of Joe’s friend and former co-worker, Roman Szpurko (“Roman”), and Joe’s children Lindsay and Chelsey. All of these supporting witnesses were credible and reliable.

[27] I also accept the results of the neuropsychological testing that was conducted by Joe’s neuropsychologist, Dr. William Fulton (“Fulton”), and by Dr. Lawrence Freedman ("Freedman"), the neuropsychologist who was retained by the defendant in this case.

[28] Lastly, I also found the surveillance evidence provided by the defendant to be very useful. There was a significant amount of video surveillance of Joe that provided strong evidence of Joe’s post-accident activities in the community.

C. Joe’s Circumstances Prior to the Accident

[29] Prior to the accident, Joe had graduated from high school and obtained his welding qualifications. He was the kind of person who was good with his hands; he could fix or build anything. He was steadily employed for most of his adult life. The last eight years prior to the accident he was employed as a welder at the Ford plant in St. Thomas.

[30] Prior to the accident, Joe had a close relationship with his three siblings, and his mother and father, all of whom lived in Niagara Falls, Ontario. Joe visited all of his family members in Niagara Falls approximately every second weekend. He was a non-custodial parent of his two daughters, but he had good relationships with both of them and had them in his care every second weekend.

[31] Regarding recreation, Joe had a circle of friends with whom he socialized. He liked to travel and he liked to spend time with his children. He went camping and did outdoor activities with his children. He enjoyed riding his motorcycle, and he went to bars with his friends to listen to live bands. He was described as a very sociable person and was known as a bit of a joker by his family.

D. Joe’s Circumstances After the Accident

[32] The medical records refer to Joe’s injury as a "diffuse axonal injury" and a "significant and severe head injury". The specific injuries included a fracture to the right parietal bone, a fracture to the right temporal bone, a fracture to the right sphenoid bone, fluid collection over the right parietal bone, generalized brain edema, and multiple intracranial lesions to the frontal lobe and both temporal lobes.

[33] Joe spent the first five months after the accident in a coma-like state. During that time he was unresponsive to most stimuli; he required assistance with breathing; he was incontinent; and he was fed through a gastrointestinal tube (“G-tube”).

[34] On January 9, 2007, Joe had surgery whereby a shunt was inserted to relieve pressure on his brain. Shortly thereafter, Joe emerged from his coma. Initially after he regained consciousness, Joe required assistance with all aspects of his daily living, including dressing, feeding, bathing, and toileting. As time progressed, he regained his ability to speak, to walk, and to control his bodily functions; however his cognitive, intellectual, and behavioural impairments remained.

[35] At the time of his discharge home on May 11, 2007, Joe had no physical impairments that could be attributed to the accident, except for tinnitus in one ear. Joe, however, had significant mental impairments that related to his brain injury. In particular, he had serious cognitive impairments, such that he had difficulty with comprehension, mental processing, thinking, and reasoning. He had intellectual limitations that restricted his ability to perceive and understand. He had behavioural problems that were evidenced by either a flat, detached presentation, or an aggressive, impulsive, sometimes violent attitude. Further, he had memory problems, particularly with short term memory. Joe’s cognitive, intellectual, behavioural, and memory problems have continued to date.

[36] In addition, Joe has had a continuing problem with perseveration, which means that he becomes fixated on certain ideas or problems, and cannot think of anything else. This can in turn lead to frustration and anger. Perseveration continues to be an ongoing problem.

[37] Further, Joe suffers from anosognosia, which means that he is unaware of his own limitations. That is, he is unaware that he suffers from impairments caused by a brain injury. I accept that this is a common trait among those who suffer frontal lobe injuries.

[38] The rehab team, under the direction of Bieman-Copland and Labella, was organized to work in a coordinated way to deal with Joe’s impairments, and to maximize Joe’s abilities so that he can live as independently as possible. The work of the rehab team revolved around developing routines, scripts, and cues.

[39] The use of routines was a strategy developed by Bieman-Copland. Bieman-Copland testified, and I accept, that the damage to Joe’s frontal lobe has caused losses to Joe’s executive function, and in particular his ability to organize, plan, comprehend, and react. Therefore, Bieman-Copland’s plan was to attempt to circumvent the frontal lobe function and engage the part of the subcortical brain that is responsible for procedural memory. That is, the strategy was to teach Joe a task until it became so embedded or ingrained in Joe that his responses would be activated by the subcortex instead of the frontal lobe. Bieman-Copland described this technique as “procedural learning”.

[40] Following the lead of Bieman-Copland, the rehab team spent a considerable amount of time teaching Joe to conduct his life by way of a series of routines. Joe has now learned routines for a wide variety of activities including getting up, getting dressed, making meals, and buying groceries.

[41] At present, Joe can engage some of his routines without prompting, but for many routines or activities he requires cues or reminders. Accordingly, the rehab team created many formal cues for Joe in the form of visual aids, in-person cues from his RTs or from Mary, and automated reminders.

[42] The rehab team has also created scripts to assist Joe in some of his daily activities. For example, a script is in place for Joe to use when he has a conversation with either of his daughters. The script provides a list of questions or comments that Joe may wish to use when he speaks with his daughters. He requires this script because he has trouble with spontaneous or creative conversation. Joe also has scripts for other activities such as grocery shopping, golfing, or routine telephone calls. In combination, the routines and the scripts give Joe the benefit of what the psychologists call “staged independence”.

[43] Labella introduced technology into Joe's treatment plan, with great success. Initially, Joe was taught to use an iPod so that he could listen to music in order to compensate for his tinnitus. As he progressed, Joe was taught to use an iPhone and a laptop computer. Presently, Joe is able to use the iPhone calendar, with occasional assistance from the RTs, to schedule his appointments. With prompting, he can now also program alerts into the iPhone to remind him of events or appointments. Further, Joe has learned to independently record or log his activities on the iPhone.

[44] From May 2007 to the present time, Joe has had some in-person contact with an RT approximately six days per week. The RTs generally carry out specific aspects of the treatment plans. They help Joe develop and follow his routines; they help develop scripts for Joe’s personal interactions; they help Joe plan his schedule; they help Joe make telephone calls; they teach Joe features of his laptop and iPhone; and they help Joe make routine decisions. It should be noted that the role of the RT is to provide treatment in the sense that the RT attempts to teach Joe the mental processes that will allow him to perform his activities and routines as independently as possible.

[45] There is strong evidence that, using these strategies, Joe has made remarkable functional gains. That is, he can do many tasks now that he could not do upon his discharge home. However, I find that Joseph’s functional gains do not mean that he has recovered from his brain injury; Joe still suffers from permanent damage to the frontal lobe and temporal lobe. I accept the evidence of Bieman-Copland and Fulton that Joe’s functional improvements are explained by the fact that Joe has been able to “routinize” some of his activities, so that he knows what to do without the need for complex reasoning.

[46] As a corollary, I find that if Joe’s routines are changed, or if something unexpected occurs, he does not have the capacity to process the change or react in an intelligent, thoughtful manner. In such circumstances, he will require some form of support from a therapist.

[47] Neuropsychological testing is a helpful way of assessing Joe’s intellectual ability, cognitive function, memory, and behaviour. Fulton conducted neuropsychological testing in 2007, 2008, and 2013, and provided detailed opinion evidence with respect to Joe’s impairments. The defendant’s neuropsychologist, Freedman, conducted neuropsychological testing in 2011, and provided significant corroboration of Fulton’s opinions. Accordingly, I accept that Fulton’s opinion evidence as to Joe’s neuropsychological abilities is accurate.

[48] In summary, I find that the neuropsychological testing indicates that Joe has a global moderate level of impairment with some areas of severe impairment. Many of Joe’s specific test scores were in the low average, borderline, or severely impaired categories. His intelligence scores were in the borderline category. Those areas of severe impairment include selective inhibition, attention control, mental tracking, sustained processing, and insight and awareness. However, the testing also shows that Joe has a good vocabulary and an average level of visual learning. Thus, I accept that Joe has the ability to learn new routines if routines are repeatedly shown to him.

[49] I accept Fulton’s opinion that, in combination, the testing suggests that Joe is severely impaired as to impulse control; that he is easily distracted; that he has difficulty staying on task; that he has difficulty thinking of more than one idea at a time; that he has difficulty organizing and sticking to a plan; and that he does not have insight into his impairment. Moreover, Fulton testified, and I accept, that Joe is a rigid concrete thinker, and that he has difficulties with abstract thought.

[50] It is useful to note the activities that Joe can do at the present time. Most prominent in this respect is the fact that Joe is now able to operate his pickup truck independently, having reacquired his driver’s licence as of April 2009. This has been described as a significant accomplishment, and I accept it as such.

[51] Joe’s therapists testified that the reacquisition of Joe’s driver’s licence was a focal point of Joe’s therapy. After Joe obtained his licence, Joe’s therapists focused on teaching Joe the driving routes to destinations that he frequents regularly. He is now able to independently leave the house in his vehicle and follow well-established routes.

[52] The defendant presented lengthy surveillance evidence at this trial which clearly shows that on a daily basis Joe independently drives his pickup truck to many destinations, most of which are in the Niagara Region. This evidence also shows that Joe can drive on the QEW highway, even in inclement weather, and still operate his vehicle safely. Further, the evidence has established that Joe drives on the QEW to Labella’s office in Hamilton once per month, and that Joe has made occasional driving excursions from Niagara to St. Thomas.

[53] Both Fulton and Bieman-Copland testified they still have some concerns about Joe driving. They accept that he can independently operate a motor vehicle and that he can learn routes to new destinations, but there is a concern as to how he would react if he was faced with a change in his route, an emergency, or an unusual situation. Therefore, I accept that it is important for him to have a support person whom he can contact immediately if he encounters any difficulty or change.

[54] Joe has also been able to independently attend at the YMCA in Niagara Falls. Again, an RT worked with Joe to show him the route back and forth to the YMCA until it became routine. That RT also worked with Joe on his gym program. Joe now regularly goes to the YMCA where he performs a lengthy gym routine on his own.

[55] The surveillance evidence was also helpful with respect to Joe’s gym activities. It shows that Joe is able to independently use many pieces of the gym equipment at the YMCA, and that he also appears to be able to use a computerized exercise tracking program that is available to YMCA members.

[56] However, I accept the testimony of Leenders that Joe does not always perform his gym exercises as instructed. Leenders observed that Joe will occasionally attempt to lift weights that are too heavy for him, and that he sometimes uses equipment that he should not be using. Therefore, if he continues to attend at the YMCA, I accept that Joe may need an RT on occasion to go with him to keep him on his program.

[57] In addition, Joe has become involved with the BICR group which is a support group for people who have had a brain injury. The group is organized in part for social get-togethers. Joe has gone with this group to the golf course, to an indoor golfing range, and to get-togethers at a bar for wings. He has also been on two vacations with this group.

[58] Joe is able to do some food preparation for himself. One of the RTs, Yarrow, comes to Joe’s house on a weekly basis to help Joe prepare meals for the week. Through the week Joe is able to heat up the prepared meals for himself, but on occasion he requires prompting. Also, the evidence shows that Joe is often tempted to buy fast food instead of heating up his prepared meals.

[59] Through the use of scripts, Joe is able to engage in conversations with his family. In particular, he has telephone conversations with his two daughters on a regular basis. The scripts allow Joe to be involved in conversations with his daughters in the sense that he can ask basic questions and give basic answers.

[60] Lindsay and Chelsey both described conversations with their father as awkward or forced. Lindsay testified that each conversation consisted of the same premeditated questions that were asked by her father in the same slow, deliberate manner. Any attempt by Lindsay to talk about something different or new would result in no response from Joe. I find that Joe cannot participate in a normal give-and-take conversation, but he can engage in this kind of structured social interaction.

[61] Mary does Joe’s banking for him and makes investment decisions for him. She deliberately involves Joe in the decision-making process because she believes that he needs to feel as if he is a part of it, but in essence Joe is not permitted to make a significant financial decision for himself. This is part of the staged independence strategy employed by the rehab team.

[62] Regarding everyday activities, I find that Joe is capable of performing many activities of daily living through the use of established routines. He can get up on his own, get dressed, and make breakfast. He is able to leave the house on his own and go to the YMCA or go to the grocery store. He can purchase groceries if he has a list of groceries, although he has some problems with impulse buying. Joe is also able to attend doctors’ appointments out of town on his own.

E. Conclusions Regarding General Damages

[63] In summary, I find that prior to the accident Joe was a working, productive member of society with a good social and family life. As a result of the accident Joe now has significant intellectual, cognitive, and behavioural deficits, and he has limited social and family relationships.

[64] Regarding his present limitations, I accept that Joe continues to have difficulty processing information and difficulty thinking and reasoning. This means that he has problems with planning, organizing, and making appropriate decisions. He can usually understand the information that he receives, but he has trouble processing and using it.

[65] Joe also continues to have memory problems. There are many reminders, such as visual aids, that are posted throughout Joe’s home. Currently, Joe uses his iPhone to provide him with reminders of certain appointments and events. He often requires the assistance of an RT to schedule an event in his iPhone calendar, or to create an alert reminder in his iPhone.

[66] Joe’s behavioural problems have diminished, but continue at a lower level. At present, he can still be impulsive and easily frustrated. In the past, he has had angry outbursts, but the frequency of those outbursts has decreased. He is taking two types of medication now to control impulsivity and hyperactivity.

[67] Perseveration is still a regular occurrence in Joe’s life. He will become obsessed about a problem to the point that he cannot think about anything else. For example, he has perseverated about banking, this lawsuit, mileage payments to the RTs, and about obtaining his driver’s licence. Further, when he is perseverating Joe usually wants to talk to a support person immediately to deal with his obsessions.

[68] Joe continues to have very little insight into his impairments. The best example relates to Joe’s belief that he could return to work. Even when Joe was still an undischarged in-patient in the hospital, Joe’s primary focus was to be released from the hospital so that he could return to work. This, despite the fact that at all times the evidence strongly suggested that Joe would never return to work.

[69] At present, Joe is moderately functional on a day-to-day basis in the sense that he can spend several hours on his own in the community without immediate supervision. There is no doubt that Joe’s ability to function has greatly improved since his discharge from hospital.

[70] I find that Joe’s present ability to function in the community has only been possible because of the routines, scripts, and therapies that have been part of his rehabilitation plan. Further, Joe’s functional independence is only possible within the structures that his caregivers have created for him. I accept that his improvements to date have been functional gains; his brain injury has not improved.

[71] Regarding prognosis, I accept the opinion of both Bieman-Copland and Fulton that, in the future, Joe’s condition is not likely to change for the better. In particular, I find that Joe’s condition is permanent and chronic; that his prognosis is poor; and that Joe is currently at the highest level of functioning that he can expect to attain.

[72] Further, I accept the evidence from both Fulton and Bieman-Copland that Joe is at increased risk of developing dementia because of his brain injury. I accept Bieman-Copland’s testimony that Joe is four times more likely to develop dementia because of this injury.

[73] Counsel have referred me to several court decisions with respect to the quantum of general damages. While no two cases are ever identical, it is useful to consider some of these previous decisions.

[74] The plaintiffs rely on the case of Gordon v. Grieg, 2007 CarswellOnt 343, a 2007 decision of this court. In that case the plaintiff was a 21 year old man who suffered a frontal lobe injury and upper spinal injury. As a result he had reduced bladder and bowel control, loss of the sense of smell and taste, and difficulties with concentration, memory, and anger. He was able to operate a motor vehicle, although with some concerns, and he required almost constant attendant care. General damages were assessed at $310,000.00 which was the cap at that time.

[75] The plaintiffs also rely on Lee v. Toronto District School Board, 2013 ONSC 3085, a 2013 decision of this court, in which a seven year old boy suffered a brain bleed that caused him to have spastic hemiplegia on the left side and reduced brain function on the right side. He had a number of physical, mental, and emotional impairments and would need considerable assistance in the future. His general damages were assessed at $300,000.00.

[76] The defendant relies on Campbell v. Roberts, 2014 ONSC 5922, a 2014 decision of this court, in which a 58 year old plaintiff suffered a brain injury as a result of medical malpractice. He was able to dress himself, make basic meals, and do light housekeeping, His level of function was higher than most people with an acquired brain injury. General damages were assessed at $200,000.00.

[77] The defendant also relies on Ligate v. Abick, 1996 CanLII 4006 (ON CA), 28 O.R. (3d) 1, a 1996 decision of the Ontario Court of Appeal, in which a 25 year old suffered a diffuse axonal injury that resulted in personality changes and cognitive deficits. The plaintiff in that case was not competitively employable. General damages were assessed by the trial judge, and affirmed on appeal, at $200,000.00. I note that this is an older case, decided at a time when the cap was much lower than it is today.

[78] Based on the principles set out above and the caselaw, I find that the range for general damages for cases in which a plaintiff has suffered a significant brain injury, but has moderate functionability is $200,000.00 to $300,000.00. In my opinion the present case is closer to the higher end of that range. Therefore, on the basis of all of this evidence, I assess general damages at $275,000.00.

LOSS OF INCOME

A. General Principles Regarding Loss of Income

[79] The purpose of awarding damages in tort proceedings is to put the injured person in the same position as he or she would have been in had the tort not been committed, in so far as can be achieved by a monetary award. This concept is discussed in the trilogy of cases, Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, Thornton v. Prince George School Board, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267, and Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, as well as the more recent case of Ratych v. Bloomer, 1990 CanLII 97 (SCC), [1990] 1 S.C.R. 940 at paras. 44, 45 and 94.

[80] The assessment of damages for future pecuniary loss was discussed in the case of Graham v. Rourke, 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (OCA). At para. 40 of the Graham decision, Doherty J. wrote:

The ultimate questions to be determined – will the plaintiff suffer future loss and, if so, how much? – cannot be proved or disproved in the sense that facts relating to events which have occurred can be proved or disproved. A plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities that her future earning capacity will be lost or diminished or that she will require future care because of the wrong done to her. If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation. [Emphasis added]

[81] As discussed in the Andrews case, in assessing any damages there is a duty to be reasonable and fair. In Andrews, at p. 242, Dickson J. wrote:

Money is a barren substitute for health and personal happiness, but to the extent, within reason, that money can be used to sustain or improve the mental or physical health of the person injured, it may properly form part of the claim… there is no duty to mitigate, in the sense of being forced to accept less than the real loss. There is a duty to be reasonable. There cannot be ‘perfect’ or ‘complete’ compensation. An award must be moderate and fair to both parties... What is being sought is compensation, not retribution.

[82] Moreover, the court in assessing future losses must consider the possibility of both positive and negative contingencies. This concept was discussed in the Graham decision at paras. 41-48.

[83] Further, McLachlin J. (as she then was) reviewed the general principles governing the assessment of damages in the case of Milina v. Bartsch (1985), 1985 CanLII 179 (BC SC), 49 B.C.L.R. (2d) 33, and wrote the following about contingencies at para. 175:

In recognition of the fact that the future cannot be foretold, allowance must be made for the contingency that the assumptions on which the award for pecuniary loss is predicated may prove inaccurate. In most cases, this will result in a deduction, since the earnings and cost of care figures are based on an uninterrupted stream which does not reflect contingencies such as loss of employment, early death, or the necessity of institutional care...

B. The Positions of the Parties Regarding Loss of Income

[84] Counsel for the plaintiffs submits that Joe had an excellent long term work history, and a good stable job as a welder at Ford. But for the motor vehicle accident, Joe would have continued to work at the Ford plant in St. Thomas until it closed in August 2011, and then Joe would have been recalled to work on the assembly line at the Ford plant in Oakville in January 2013. Plaintiffs’ counsel submits that because of the motor vehicle accident, Joe is incapable of competitive employment.

[85] Counsel for the defendant acknowledges that Joe’s ability to be employed is impaired as a result of the motor vehicle accident. However, the defendant submits that Joe has failed to mitigate his losses by failing to apply for the work equity program at Ford. Further, the defendant submits that there are negative contingencies that must be applied to the plaintiffs’ calculation of Joe’s future loss of income.

[86] With respect to past loss of income, the plaintiffs make no claim as Joe has received collateral benefits that have reduced his past loss of income claim to less than zero. The defendant accepts that there is no past loss of income claim, but takes the position that the negative past loss of income should be deducted from Joe’s claim for future loss of income.

C. General Findings Regarding Loss of Income

[87] I find that prior to the motor vehicle accident Joe had a reasonably good work record. Joe was mechanically inclined; he was very good at building and fixing things; and he had some skill as a welder. The testimony of Roman, Mary, and Lindsay supports the view that Joe was someone who could fix anything.

[88] I find that Joe maintained consistent regular employment throughout his working life. For the eight years immediately prior to the accident, he worked as a welder at the Ford plant in St. Thomas. Mary testified, and I accept, that Joe was happy with his job at Ford and enjoyed working there. I therefore find that Joe, but for the accident, would have continued to work at Ford.

[89] I find that Joe’s job as a welder at Ford would have been interrupted when the St. Thomas plant closed permanently in August 2011, at which time Joe would have been laid off. I accept the evidence of David Nangini (“Nangini”), the Ford union relations manager, who confirmed that in November 2012 Joe would have been offered an assembly line job, at a slightly lower wage, at the Ford Oakville plant. I find that Joe would have accepted the Oakville job effective January 2013, and that Joe would have continued to work at the Ford Oakville plant until he retired.

[90] At trial, the plaintiffs presented opinion evidence from both Bieman-Copland and Fulton, which I accept, that because of the motor vehicle accident Joe is not employable in the competitive workforce. There was no expert evidence to the contrary.

[91] Fulton testified that Joe was not employable because of his difficulties with planning and organizing, attention control, mental tracking, memory, and impulse control. Fulton also testified that it is very difficult for Joe to identify a task that needs to be done; create a plan to perform the task; and stick to the plan to complete the task.

[92] Bieman-Copland testified that Joe was not fit to return to work because of his cognitive problems, his emotional problems, his perseveration, and his memory problems. When she was asked about the possibility of Joe being trained to return to work, Bieman-Copland said that, for safety reasons, she could not in good conscience authorize Joe to return to a worksite, even under the supervision of a vocational consultant.

[93] Bieman-Copland and Fulton both testified that volunteer work is a good activity for Joe as it gives him a sense of purpose, but there are safety concerns and he needs to be monitored and supervised. This point is confirmed by the evidence that Joe enjoyed working, moving furniture, as a volunteer at the Re-Store in St. Catharines once per week for a period of time. I accept Mary’s testimony that Joe left that volunteer job because he injured himself at work, in part because he was unaware of his limitations regarding how much weight he should be lifting.

[94] Both Fulton and Bieman-Copland testified that the fact that Joe could do volunteer work for a period of time did not indicate that Joe could work gainfully for a wage. They both commented that Joe would not have been able to work at a pace or productivity level that would be expected in the competitive work force.

[95] This view was echoed by Shauna Brown (“Brown”), the life care planning expert retained by the defendant. Although Brown was not called as a vocational expert, she recommended that it would be beneficial for Joe to do volunteer work or work in a sheltered employment environment. She emphasized that she would never recommend that Joe return to competitive employment.

[96] In summary, I find that because of Joe’s cognitive limitations, Joe will have great difficulty learning how to perform any job; that if Joe were able to learn how to perform a routine job, he would not be able to adapt to any change in the job routine; that there are significant safety concerns for Joe working at any job; and that Joe will not in any event be able to work at a pace or productivity level that would be required in the competitive work force. For all of these reasons, I find that as a result of the motor vehicle accident Joe will never be capable of gainful employment.

[97] In calculating Joe's claim for future loss of income, I rely upon the testimony of the plaintiffs’ economic expert, Eli Katz ("Katz"). Katz provided three possible scenarios for lost income. I prefer scenario 1B that is based on the assumptions that but for the motor vehicle accident Joe would have worked at the Ford plant in St. Thomas until it closed in August 2011; that Joe would not have worked any overtime hours between the date of the accident and the date the plant closed; that Joe would have been off work from August 2011 until he was recalled by Ford in January 2013; that Joe would have collected Employment Insurance benefits while he was off work; that Joe would have continued to work on a full-time basis with Ford from January 2013 until he retired; and that Joe would have worked 3.5 hours per week of overtime after January 2013.

D. Past Loss of Income

[98] Pursuant to s. 267.5(1) of the Insurance Act, R.S.O. 1990, c. I.8, Joe’s past loss of income claim is limited to “80 per cent of the net income loss” that is suffered “more than seven days after the incident and before the trial of the action.” It is agreed by the parties that the date of “the trial of the action” should be fixed at January 5, 2015. In accordance with s. 267.5(1), Katz calculated Joe’s past loss of income using scenario 1B to be $340,502.00.

[99] However, the Insurance Act provides for a deduction of collateral benefits from the loss of income claim. Section 267.8(1) of the Insurance Act, reads as follows:

In an action for losses or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:

1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity.

2. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.

3. All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment.

[100] Joe’s statutory accident benefits claim has been settled in full, and the accident benefits insurer has paid out an amount that represents any and all accident benefits to which Joe was entitled. In total, the accident benefits insurer paid income replacement benefits regarding past lost income in the total amount of $138,029.00. In addition, between the date of the accident and the trial Joe received STD benefits, LTD benefits, and CPP benefits in the total amount of $279,176.00. Thus, the total amount of these collateral benefits, including accident benefits, regarding past lost income is $417,205.00. Therefore, in consideration of s.267.8(1), Katz deducted these collateral benefits from Joe’s past loss of income claim. The result was a negative number of minus $76,703.00.

[101] Consequently, in this action plaintiffs’ counsel makes no claim for past loss of income. However, counsel for the defendant has submitted that the resultant negative past loss of income should be set off against Joe’s future loss of income claim in this action. The defendant relies upon the principle against double recovery as discussed in recent court decisions.

[102] I find that the Insurance Act has been amended many times over the past 25 years with a view to balancing a plaintiff's need to receive income replacement benefits on a no-fault basis and the plaintiff's entitlement to prove and recover the full amount of the plaintiff's economic loss in a tort claim. There is no doubt that one of the objectives of the amendments to the Insurance Act is to provide compensation to the plaintiff that neither overcompensates nor undercompensates the plaintiff. Accordingly, I accept that the Insurance Act provides a legislative code for compensation for loss of income both on a no-fault and a tort basis, and that it should be strictly construed.

[103] In consideration of s.267(1)(a) of the Insurance Act, the predecessor to s.267.8(1), the Ontario Court of Appeal attempted to clarify the manner in which collateral benefits were to be deducted in the case of Bannon v. McNeely, 1998 CanLII 4486 (ON CA), 38 O.R. (3d) 659.

[104] At paragraph 49 of the Bannon decision, Finlayson J. A. wrote,

I believe that, where possible, any no-fault benefit deducted from a tort award under section 267(1)(a) must be deducted from a head of damage or type of loss akin to that for which the no-fault benefits were intended to compensate. In other words, and employing the comparison of Morden J. in Cox, supra, if at all possible, apples should be deducted from apples, and oranges from oranges. It follows further from this conclusion that if the no-fault deduction exceeds the amount awarded under the specific head of damages to which the no-fault benefits can be attributed, then there cannot be resort to another portion of the tort judgment for the balance.….[Emphasis added]

[105] The essential principle of the Bannon decision is that, unless the legislative scheme provides otherwise, any collateral benefits received or receivable by the plaintiff should be deducted from a head of tort damages that is akin to that for which the collateral benefits are intended.

[106] Following the Bannon principle, several trial courts in Ontario found that a past loss of income claim and a future loss of income claim were two different heads of damages. Accordingly, those courts concluded that any collateral benefits paid or payable for past loss of income could not be deducted against the plaintiff's tort claim for future loss of income. In that respect see cases of Dalmatin v. Raposo, 2000 CanLII 22326 (ON SC), [2000] O.J. No. 202, Baillargeon v. Murray, 2001 CanLII 28251 (ON SC), [2001] O.J. No. 148, and Hornick v. Kochinsky, 2005 CanLII 13784 (ON SC), [2005] O.J. No. 1629.

[107] Thereafter, the Insurance Act was amended and s.267.8(1) replaced the legislation that had been considered in the Bannon decision. This new section of the Insurance Act has recently been considered by the Divisional Court in the case of Mikolic v. Tanguay, 2015 ONSC 71 (Div. Ct.).

[108] In the Mikolic case, a jury had awarded the plaintiff $20,000.00 as compensation for past loss of income and $30,000.00 for future loss of income. The plaintiff had previously accepted the sum of $77,500.00 in settlement of his accident benefits claim for all past and future income replacement benefits. The decision of the trial judge that the lump sum accident benefits settlement could not be deducted from the jury award for future loss of income was overturned by the Divisional Court.

[109] At paragraphs 32 and 33 of the Divisional Court decision in Mikolic, Sanderson J. wrote:

[32] Since the legislation has been amended post Bannon, it is necessary for us to look at the specific wording of ss. 267.8(1) and (4), which require the court to carry out at least a limited matching when determining the deductibility of statutory benefits.

[33] Specifically, with respect to income replacement benefits, the relevant subsections provide that they must be matched against tort income losses. Section 267.8(1) (1) does not differentiate between deductions to be made from tort awards for income loss in respect of statutory accident benefits received for past income replacement benefits and for future income replacement benefits. [Emphasis added]

[110] Then, at paragraph 36, referencing the decision in Cummings v. Douglas, 2005 CarswellOnt 10217, rev’d in part 2007 ONCA 615, Sanderson J. wrote:

[36] On the analysis of the Court of Appeal in Cummings, the trial judge was not required to differentiate between the two. He was simply required, by the wording of s. 267.8(1) (1), to deduct amounts received for statutory income replacement benefits from tort awards made for income loss.

[111] At this point in the evolution of this issue, I am bound by the Divisional Court decision in Mikolic. Accordingly, I accept that I should not differentiate between a past loss of income claim and a future loss of income claim for the purpose of applying s.267.8(1) of the Insurance Act.

[112] Therefore, I find that Joe's past loss of income claim in this action should be assessed at zero, and that the balance of the collateral benefits received for past loss of income in the amount of $76,703.00 must be deducted from Joe's future loss of income claim.

E. Future Loss of Income

[113] Katz calculated Joe’s gross future loss of income in scenario 1B to be $865,599.00. In that calculation, Katz took into account the contingency of survival and the contingency of labour market participation.

[114] Section 267.8(9) of the Insurance Act sets out rules with respect to the treatment of potential future collateral benefits. The portion of Joe’s accident benefits settlement that applies to future income replacement benefits, in the amount of $197,897.00, should be deducted from the future loss of income otherwise calculated. The result is that Katz calculated Joe’s net future loss of income claim to be $667,702.00.

[115] Counsel for the defendant does not challenge Katz’s mathematical calculations, but the defendant raises issues with respect to mitigation and contingencies.

[116] Regarding mitigation, the defendant submits that Joe's future loss of income claim should be reduced because Joe failed to apply to the work equity program at Ford. I do not agree. Although I heard evidence from Nangini that Ford had a work equity program that was designed to assist employees with physical and mental disabilities, I have no evidence as to the details of such a program. In particular, I have no evidence as to whether Joe would be eligible to apply to the program; whether Joe met the criteria for the program; or whether it was anticipated that Joe would succeed in the program. Therefore, I do not find that Joe failed to mitigate his losses for this, or any, reason.

[117] Regarding contingencies, defendant’s counsel elicited evidence from Katz that the average retirement age for blue collar workers in Ontario was 63 years of age. In his evidence, Katz calculated Joe’s losses up until Joe's 68th birthday. On the surface, it might seem that Katz has overestimated Joe's future loss of income; however, it must be recognized that in his calculations Katz has discounted Joe's future loss of income for every year from the trial date to age 68 based on participation rates in the workforce. Therefore, in effect, Katz has already applied a contingency to adjust for the possibility that Joe could have retired or ceased employment in any year up to and including the year he turned 68. Katz simply truncated his calculations at Joe's 68th birthday on the premise that there was no realistic possibility that Joe would work beyond 68 years of age.

[118] For these reasons, I will not apply a contingency factor so as to terminate Joe's future loss of income as of his 63rd birthday. That being said, I find that Joe would have been less likely than the average worker to participate in the work force as he aged. In my view, Joe was a fun loving person who worked steadily, but for whom working for a wage was not a primary focus in life. Therefore, I accept that in calculating Joe's future loss of income I should apply participation rates that are less than those used by Katz. Accordingly, I will reduce Joe's future loss of income as calculated by Katz by 10% in order to adjust for this contingency.

[119] In summary, I find Joe's future loss of income claim to be 90% times $667,702.00, or $600,932.00. As discussed in the previous section, this amount must be reduced by $76,703.00, the negative past loss of income created by the payment of collateral benefits. Therefore, in this action Joe is awarded the sum of $524,229.00 for future loss of income.

PAST MEDICAL/REHABILITATION EXPENSES

[120] Joe’s claim for reimbursement of past medical/rehabilitation expenses includes claims for past neuropsychological counseling, speech language pathology, occupational therapy, the RT sessions, and case management. These expenses were paid by the accident benefits insurer until the accident benefits claim was settled in full.

[121] Plaintiffs’ counsel has prepared a detailed calculation that shows that the total amount of Joe’s medical/rehabilitation expenses incurred from the time the accident benefits claim was settled in February 2011 to the date of trial amounts to $351,282.00. Further, it is acknowledged that in the settlement of the accident benefits claim, Joe received the sum of $300,000.00 that should be applied toward these expenses. Accordingly, I find that Joe is entitled to compensation in the amount of $51,282.00 for past medical/rehabilitation expenses.

FUTURE MEDICAL/REHABILITATION EXPENSES

A. General Principles Regarding Future Medical/Rehabilitation Expenses

[122] The general legal principles with respect to the assessment of future care expenses are identical to those that apply to the assessment of future loss of income, as discussed earlier in this decision. That is, it is accepted that compensation for future expenses cannot be perfect or complete compensation. Therefore, the onus is on the plaintiff to establish a real and substantial risk of future pecuniary loss in order to prove entitlement to compensation. Further, the concepts of reasonableness, fairness, and contingencies also apply to the assessment of future care expenses.

B. General Findings Regarding Future Medical/Rehabilitation Expenses

[123] Bieman-Copland and Labella made recommendations with respect to Joe's needs for future medical/rehabilitation care and services, including recommendations for neuropsychological counseling, occupational therapy, speech language pathology, and rehabilitation therapy. They also made recommendations for Joe to engage in certain activities and have the use of specific devices.

[124] In general, Bieman-Copland and Labella, supported by Fulton, recommend that the current therapy regime should remain in place. Specifically, the plaintiffs’ experts recommend the following: neuropsychological counseling sessions of 1.5 hours per month, plus one hour per month for crisis management; occupational therapy sessions of 1.5 hours per month; speech language pathology sessions of four hours per year with Joe, plus another four hours per year with Joe and family; and RT sessions of 17.3 hours per week, plus two hours per month for crisis management.

[125] In addition, the plaintiffs’ experts recommend that the therapists attend team meetings for four hours per year; that the occupational therapist and the neuropsychologist receive compensation for supervising the other therapists; and that Joe receive compensation for his travel expenses for attending the therapy sessions.

[126] In total, the plaintiffs’ experts are recommending that Joe should be in a therapy session with an RT on five days per week for several hours each day, and that he would also attend regular sessions with a psychologist, an occupational therapist, and a SLP. The number of recommended therapy sessions in my view seems to be extraordinarily high.

[127] In assessing the reasonableness of the recommendations, one must consider the nature of the proposed therapy. When Joe is with an RT or another therapist, the treatment consists of Joe thinking through a course of action to plan for an activity, an excursion, or a telephone call. The therapy is not the organization of Joe's day by the therapist; rather, it is the systematic learning of a routine or a mental process. I have no doubt that a great deal of therapy was required in the first few years post-accident when Joe was taught many routines and certain mental processes, but I have to question whether Joe continues to need such an extensive program.

[128] The surveillance of Joe that was presented at the trial suggests that Joe has learned his routines to the point where he can now function independently in the community. That is, Joe is able to independently drive his vehicle; drive from location to location within the Niagara Region; make occasional trips independently to locations outside of the Niagara Region; attend the YMCA gym; purchase groceries; go to the movies; go to Tim Horton's; and purchase fast food.

[129] At this point, one gets the impression that Joe has learned the routines that he is going to learn. This impression is confirmed somewhat by Bieman-Copland’s evidence that Joe has probably reached the highest level of functioning that he can expect to attain. Therefore, I find that Joe’s future therapy will focus on reinforcing the routines that Joe has already learned so that Joe can maintain his current level of function. In addition, Joe’s future therapy will also assist Joe in dealing with any future changes in technology or in Joe's family or social circumstances. In my view, this means that Joe will require less therapy in the future than he has had in the past.

[130] Also, it must be remembered that therapy sessions are not appropriate if the main purpose of the sessions is to supervise Joe. That is, if Joe requires supervision, then it is much more efficient and economical for the supervision to be done by a PSW, not a therapist. I will deal with supervision by a PSW when I deal with the issue of attendant care.

[131] The defendant's life care planning expert, Brown, suggested a significant reduction in Joe’s therapy, but I put little weight on Brown’s opinions on this topic because I find that Brown did not have the factual foundation for her opinions. Specifically, Brown did not read most of the notes from the RT sessions; she saw only limited records from the SLP and the occupational therapist; she never met with Joe; and she did not interview any of Joe's family or friends. It is telling that Brown did not believe that Joe had any serious perseveration problems since 2008, when there is a vast amount of evidence that Joe's perseveration continues to be a significant problem.

[132] Freedman, the defendant’s neuropsychologist, felt that Joe had done very well, and that he seemed to be independently functioning in the community. Freedman accepted that there was a need for some degree of ongoing therapeutic support, but suggested that Joe did not need as much therapy as he is currently receiving. Generally, I agree with Freedman’s comments.

[133] In summary, I find that Joe requires ongoing therapy that will focus on reinforcing Joe’s current routines and assisting Joe in dealing with any changes in his circumstances. Given Joe’s deficits, the amount of therapy will be significant, but need not be as extensive as the current therapy regime. The goal will be to allow Joe to maintain his current level of function.

C. Specific Findings Regarding Future Medical/Rehabilitation Expenses

(1) Neuropsychological Counseling

[134] Regarding neuropsychological counseling for Joe, the plaintiffs’ experts recommend one session per month at 1.5 hours per session, plus one hour per month for crisis management, plus four hours per year for team meetings, plus 1.5 hours per month for supervision of the RTs.

[135] I find that the regular involvement of a neuropsychologist, such as Bieman-Copland, is essential to Joe's treatment and the maintenance of Joe's current level of function. Bieman-Copland initially saw Joe weekly, and then decreased her involvement to biweekly. I find that the proposed monthly counseling sessions, with some provision for crisis management, in the future is reasonable.

[136] Moreover, the role of the neuropsychologist is not only to counsel Joe, but to lead the rehab team. Therefore, I will allow an amount as requested for team meetings and supervision.

[137] Accordingly, I allow this part of the medical/rehabilitation claim in the amount of $11,440.00 per year, or a lump sum lifetime cost of $286,054.00.

[138] As part of the claim for neuropsychological counseling, the plaintiffs request future dementia screening by a neuropsychologist, at an annual cost of $1,000.00 commencing at age 60 in 2021. I accept that Joe is at increased risk for dementia. However, I agree with the defendant's submission that dementia screening is something that is routinely done by family doctors and that there should be no out of pocket cost for this medical test. Therefore, I will not allow this claim.

[139] There is also a claim for Joe's travel expenses to and from his treatment providers. I will deal with this item under the heading "Other Medical/Rehabilitation Expenses".

(2) Occupational Therapy

[140] Regarding occupational therapy, the plaintiffs have requested one session per month at 1.5 hours per session, plus four hours per year for the occupational therapist to attend team meetings, plus two hours per month for supervision of the RTs.

[141] The role of an occupational therapist is to enable the patient to engage in everyday living through the use of occupation. The occupational therapist deals with the patient's ability to function in a variety of areas, including personal care, recreation and leisure, and employment.

[142] At this point, Joe has systems in place that enable him to engage in his everyday activities. Those systems revolve around the use of technology, particularly his iPhone and laptop. Therefore, I find that the occupational therapist’s future role with Joe will be a limited one.

[143] In the future, in my view, the occupational therapist should be periodically involved to reinforce Joe's current routines. In addition, occasional occupational therapy sessions will be needed to deal with any changes in technology, or changes in Joe's residence, family, or social circumstances.

[144] Accordingly, I will allow six occupational therapy sessions, of 1.5 hour each, per year. I will also allow four hours per year for team meetings. I find that there is no need for the occupational therapist to supervise the RTs, given that there will be team meetings and that there will be supervision by the neuropsychologist.

[145] Therefore, I allow occupational therapy expenses in the future in the amount of $1,560.00 per year, or a lump sum lifetime cost of $39,023.00.

(3) Speech Language Pathology

[146] Currently, Joe sees a communication disorders assistant (“CDA”) who reports back to the SLP, Jennifer Horton (“Horton”). The SLP and the CDA have created many scripts for potential conversations that Joe might wish to have with his family, his golf buddies, or border officials.

[147] The plaintiffs’ experts recommend that the speech language pathology sessions continue for 2015 and 2016, and be terminated at the end of 2016. I think this is an appropriate approach and I will allow the claim on this basis in the total amount of $4,161.00.

(4) Rehabilitation Therapy

[148] Perhaps the most contentious claim is the plaintiffs’ request for the future costs of the RTs. Bieman-Copland and Labella recommend future RT sessions for parts of five days per week, for a total of 17.3 hours per week. In addition, they recommend two hours per month for crisis management, plus four hours per year for team meetings, plus travel time and mileage for the RTs.

[149] In general terms, I find that the RTs have been very helpful to Joe. Together, the RTs have taught Joe to use scripts, routines, and cues, and they have engaged Joe in thoughtful treatment that has assisted Joe in compensating for his mental deficiencies.

[150] At present, Kerr-Martin attends at Joe’s home four days per week for approximately 2.5 hours per day. Her primary jobs involve organizing and planning Joe’s week, scheduling his appointments, assisting Joe with daily living tasks, assisting him in preparing scripts for such matters as making telephone calls, and assisting him with financial decisions.

[151] Yarrow attends at Joe’s home one day per week for two hours and assists Joe in meal preparation. She also organizes his grocery lists and food inventory for him.

[152] Leenders attends at Joe’s home one day per week on Saturdays for about three or four hours each day. His primary job is to work on handyman projects with Joe, such as building a dresser, or changing the oil in his truck. Leenders also takes Joe on excursions into the community to purchase supplies and groceries, and occasionally assists Joe with his gym routine at the YMCA.

[153] I am well aware that the role of the RTs is not to perform tasks for Joe, but to teach Joe how to perform the tasks. The RTs do so by methodically breaking down each task into very small steps, and then walking Joe through the decision making process for each step. They also develop and teach Joe routines that Joe can follow, sometimes on his own and sometimes with guidance, to accomplish some tasks.

[154] Following this approach, I find that the rehab team has taught Joe routines that he can follow, with occasional assistance, to perform simple tasks such as calling his daughters on the telephone, scheduling appointments in his iPhone calendar, putting alerts in his iPhone, making a grocery list, or deciding what club to use on a golf course.

[155] A good example of the role of the RT is the series of events that occurs if Joe wishes to place a telephone call to book an appointment. To start this task, one of the RTs will work with Joe to prepare a script of what Joe intends to say or ask during the telephone call. The preparation of such a script seems to take an inordinate amount of time. Then, often the script is rehearsed between Joe and the RT before the telephone call is placed. Then, once the telephone call is placed, if the script goes as planned, Joe can often achieve the end result. However, if the person on the other end of the telephone line asks an unexpected question, Joe is usually unable to respond, and it is necessary for the RT to either answer the question or prompt Joe accordingly.

[156] The defendant submits, and I accept, that Joe is able to function for hours at a time in the community without the assistance or prompting of an RT. The surveillance evidence shows that Joe is capable of driving around town to different destinations, buying fast food, shopping for groceries, going to the movies, and attending the YMCA.

[157] I find that Joe is in fact capable of all of these activities, but that Joe can only be as independent as he appears to be if he has regular contact with his RTs. I find that the RTs assist Joe with his organizational skills and his mental processing on an almost daily basis, and that the RTs provide the foundation for Joe's apparent independent lifestyle.

[158] Thus, I find that it is important for Joe to have at least modest regular contact with the RTs. At a minimum, a primary RT who attends to Joe several times per week is essential. Thus, the role of Kerr-Martin should be continued in my view approximately four times per week, for two hours per session.

[159] I also accept that a different RT who can become involved in building projects and community projects, in the way in which Leenders is currently involved, would be extremely beneficial to Joe. I find that an RT who performs this function should attend to Joe once per week on a weekend for four hours per session.

[160] I question whether a therapist who is dedicated to cooking or meal preparation is necessary any longer. Joe now has about 25 documented recipe routines, and he is able to prepare meals from these recipes, some with supervision, and some without. In my view, the primary RT should be able to prompt Joe regarding his meal management skills.

[161] In conclusion, I find that Joe needs regular therapy from RTs to assist him with his mental processes. The primary goal of the RT sessions will be to maintain Joe’s current routines, but the RTs will also be needed to teach Joe new routines and to guide him with respect to any unexpected events that might interfere with his established routines. I find that without a significant number of RT sessions Joe’s quality of life will substantially diminish.

[162] Therefore, I will allow 12 hours per week for RTs. I will also allow one hour per month for crisis management, plus four hours per year for team meetings. I will allow travel time for the RTs to attend at Joe's house for therapy sessions, but I will not allow mileage in addition to travel time. The total of these amounts for future RT expenses is $53,099.00 per year, or a lump sum lifetime cost of $1,327,727.00.

(5) Case Management

[163] Joe requires a case manager to select, acquire, and organize his medical/rehabilitation therapy. The need for a case manager, given Joe's brain injury, will continue for Joe's lifetime.

[164] The plaintiffs called Cindy Foster (“Foster”) to give evidence with respect to case management needs, and the defendant called Brown to give her opinion. I find that the opinions of these two expert witnesses with respect to the need for and cost of case management were very similar.

[165] Accordingly, I will allow case management fees in the future of three hours per month, plus team meetings of four hours per year, plus travel time, but no mileage allowance. This amounts to an annual cost of $5,695.00, or a lifetime lump sum cost of $142,402.00.

(6) Other Medical/Rehabilitation Expenses

[166] Both parties agree that a yearly gym membership at the YMCA is useful. I will allow this claim of $705.00 per year.

[167] Regarding the BICR special events, I agree with the defendant that the special events are essentially vacations once per year. In my view, this is not an expense incurred because of the accident. Most members of the public, regardless of whether they have been in a motor vehicle accident, would pay for a vacation once per year. I will not allow this claim.

[168] I will allow the weekly programming costs for BICR in the amount of $35.00 per week, plus the cost of traveling in the van with other BICR participants at $16.00 per week. Allowing for 46 weeks per year, the cost is $2,346.00 per year.

[169] I will not allow the claim for golf fees or interest courses. I find that although Joe's interests may have changed after the motor vehicle accident, the amount of money that Joe currently spends on recreational events such as golf and interest courses is no different than the amount of money that he spent prior to the accident on other recreational interests.

[170] Regarding Joe's claim for travel expenses, I note that the RTs travel to Joe's house to meet with him. Therefore, Joe's travel expense claim only relates to his sessions with the neuropsychologist, the occupational therapist, and the SLP, as well as Joe's trips to the YMCA and to other social activities.

[171] In my view, those travel expenses are offset by the fact that since the accident Joe does not drive back and forth to work, and Joe does not make the long trips from St. Thomas to Windsor to Niagara Falls on alternate weekends. Therefore, I will not allow Joe's claim for future travel expenses.

[172] The plaintiffs’ claim for medications is reasonable and I will allow it at $286.00 per year.

[173] With respect to assistive devices, the plaintiffs’ claim for, among other things, an iPhone replacement every three years, an annual iPhone data plan, and a laptop computer replacement every four years. In my view, the defendant makes a good argument that most members of the public, regardless of whether they have had a motor vehicle accident, spend money on an iPhone, laptop computer, and data plan. I accept that, regardless of whether Joe had a motor vehicle accident, he would incur expenses for these items.

[174] However, I find that Joe is heavily reliant on his iPhone and laptop for scheduling and for everyday activities. Therefore, I accept that Joe will probably need to have better hardware and software because of the motor vehicle accident. Further, he will probably need to upgrade his iPhone and laptop more often because of the motor vehicle accident. Therefore, I am prepared to allow the plaintiffs’ claim for 50% of the iPhone, the data plan, and the laptop, for a total of $497.00 per year.

[175] I will not allow the plaintiffs’ claim for Internet access, the computer chair, or the filing cabinet because those are all expenses that Joe would have had in any event regardless of the motor vehicle accident. They are usual or common expenses.

[176] I also will not allow the claim for the large calendar or the medication docette as these are not necessary expenses related to the motor vehicle accident.

[177] I will allow the plaintiffs’ claim for a GPS system in the amount of $105.00 per year. It is clear that Joe is reliant on a GPS system and it is important that he have one that is reliable.

[178] Regarding the stove guard, it is useful considering Joe's cognitive deficits and I will allow it.

[179] The total of all of these other medical/rehabilitation expenses has been calculated as a lump sum lifetime cost of $100,602.00.

D. Conclusion Regarding Future Medical/Rehabilitation Expenses

[180] In summary, I will allow the following amounts as compensation for future medical/rehabilitation expenses, calculated as lump sum lifetime costs:

Neuropsychological Expenses – $286,054.00.

Occupational Therapy Expenses – $39,023.00

SLP Expenses – $4,161.00

Rehabilitation Therapy Expenses – $1,327,727.00

Case Management – $142,402.00

Other Medical/Rehabilitation Expenses – $100,602.00

[181] The total of these amounts for future medical/rehabilitation expenses is $1,899,969.00.

ATTENDANT CARE EXPENSES

[182] The plaintiffs’ witnesses, Bieman-Copland, Labella, and Foster, recommend that attendant care be provided for half of Joe’s waking hours, or the equivalent of eight hours per day. Further, because Joe is at increased risk of dementia, Bieman-Copland recommended that attendant care for Joe be increased to 16 hours per day when Joe turns 60 years of age.

[183] That view must be contrasted with the defendant’s view. The defendant relies heavily on the surveillance evidence that shows that Joe is able to function independently in the community. Both Freedman and Brown commented upon how Joe was able to function independently, travel from place to place, and conduct routine matters of daily living by himself. Therefore, the defendant submits that Joe requires very little attendant care at present.

[184] In my opinion, the plaintiffs’ request for attendant care for eight hours per day at present is not justified. Joe is clearly able to function independently in the community for hours at a time. On a daily basis he leaves his house in his truck and drives to a variety of familiar destinations, primarily in the Niagara Region. He also independently participates in a variety of activities, including grocery shopping, golfing, attending a movie, attending Tim Horton’s, and attending the YMCA. In this respect, I accept Fulton's testimony that the RTs and Bieman-Copland have done a masterful job of scripting Joe's life and teaching him routines, thus minimizing the need for supervision.

[185] I find that Joe at present needs some attendant care each day to plan and organize his day. He also needs a caregiver who can prompt him about matters such as hygiene and meals. Further, I accept that the proposed caregiver will likely be “on call” for times in which Joe encounters a difficulty. Lastly, I accept that there should be some intermittent attendant care in the community on a limited basis as a way of monitoring Joe's level of function in the community.

[186] For all of these reasons, I find that attendant care from the present time until Joe turns 60 years of age should be provided by PSWs at an hourly rate of $29.84, for two hours per day, in addition to any time that Joe spends with his therapists. This amounts to attendant care expenses of $21,720.00 per year, and the present value of that figure to age 60 is $127,424.00.

[187] Regarding attendant care after age 60, I accept that Joe is at increased risk of dementia because of the motor vehicle accident, and that if Joe acquires dementia he may need more attendant care. That is, I accept that the plaintiffs have established that, because of the accident, there is a real and substantial risk that Joe’s need for attendant care will increase in the future.

[188] The evidence from Bieman-Copland is that Joe's risk of dementia is four times greater than the average. This increased risk of dementia does not mean that there will necessarily be any reduction in Joe's cognitive abilities at any time. It simply means that Joe is at greater risk than the average person.

[189] Unfortunately, I have heard no evidence as to the rate of dementia that applies to the average person. I also have no evidence as to whether Joe would have been otherwise susceptible to dementia; as to whether Joe might be expected to acquire dementia at age 60, or at some much older age; or as to the degree of cognitive deficiency that Joe might suffer if and when he acquired dementia.

[190] Accordingly, the best approach is to use the plaintiffs’ calculations of attendant care expenses from age 60 to end of life at the rate of 16 hours per day, and then substantially reduce that amount for these negative contingencies.

[191] Using Bieman-Copland’s recommendations, the plaintiffs have calculated the present value of attendant care expenses, at a rate of 16 hours per day, from age 60 to end of life to be $2,821,670.00. From that amount should be deducted the portion of the accident benefits settlement that is attributable to attendant care in the amount of $269,722.00 for a gross amount of $2,551,948.00. This figure should, in my view, be reduced by 75% for the contingencies set out above. Therefore, I will allow Joe’s claim for attendant care expenses from age 60 to end of life in the amount of $637,987.00.

[192] Therefore, the amount of the award for attendant care expenses is $127,424.00 to age 60, plus $637,987.00 to end of life, for a total of $765,411.00.

[SUBSTITUTE DECISIONS ACT, 1992](https://www.canlii.org/en/on/laws/stat/so-1992-c-30/latest/so-1992-c-30.html)

[193] I accept that because of his injuries, Joe is not capable of managing his own financial affairs, and that he will never be able to do so. I find that someone will be required to manage any monetary award for Joe from the date of the judgment for the rest of Joe's life. Therefore, I find that Joe is entitled to compensation for the fees that will be incurred for the future management of the money awarded to him in this proceeding. I will refer to this compensation as a "management fee".

[194] Since the motor vehicle, accident Mary has been managing Joe's financial affairs pursuant to a Power of Attorney. Plaintiffs’ counsel submits that because Mary, or someone in her place, will manage Joe’s money pursuant to the Power of Attorney, this court should make an award for management fees in accordance with the compensation schedule provided under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).

[195] In summary, the legislation, by operation of s.40(1) of the SDA and O.Reg. 26/95, provides that an attorney will be paid compensation of 3% on capital and income receipts, 3% on capital and income disbursements, and 3/5 of 1% on the annual average value of the assets.

[196] The plaintiffs’ economist, Katz, testified on this issue. On the assumption that Joe would receive a sizable judgment as result of this proceeding and that all of the judgment would eventually be paid out to Joe, and on certain assumptions with respect to returns on investments, Katz calculated that the amount of compensation pursuant to the legislation would be the equivalent of 15.58% of the total amount of the monetary award. Therefore, plaintiffs’ counsel requests a management fee in the amount of 15.58% of Joe's total monetary award.

[197] In my view, a management fee of 15.58% is extraordinarily high. Historically, management fees have been awarded in personal injury actions in which the injured plaintiff is awarded a significant amount of money and is incapable of managing that money. However, I am not aware of any case in which management fees have approached the amount requested in the present case.

[198] Furthermore, although the legislation is a useful consideration, I find that the legislation does not create a mandatory fee schedule. In fact, in a passing of accounts by an attorney, a court has the power to adjust the attorney’s compensation in accordance with the value of the services performed, pursuant to s.42(8)(a) of the SDA. O.Reg. 26/95 also provides for “an adjustment” to an attorney’s account under s.42 of the SDA. Thus, regardless of whether I choose to follow the SDA or the case law, I find that I have a discretion to award a management fee that provides for compensation in accordance with the value of the services performed, or to be performed.

[199] Several court decisions have discussed the court’s discretion to adjust attorney’s fees based on the value of the services performed. In an estate context, the matter was considered in the case of Sworik (Guardian of) v. Ware, [2005] O.J. No. 3404. In that case at para. 119, Zelinski J. found that s.40 of the SDA and its Regulation is not a statutory determination of the amount of compensation to which the attorney is entitled as of right. He stated that a court should not conclude that attorneys are entitled, as a minimum, to the percentages set out in the Regulation because that would not take into account the prospect, stipulated in the Regulation, of "an adjustment pursuant to a passing of the ... attorney's accounts.”

[200] This view was confirmed in the context of compensation for a court appointed guardian of property in Bagnall v. Bruckler, [2009] O.J. No. 3559, a case in which Brown J. wrote at para. 15:

As other judges of this Court have made clear elsewhere, the compensation rates prescribed in the SDA do not constitute fixed entitlements to compensation at those rates; ultimately, the courts must ensure that guardians receive compensation which is fair and reasonable for the care, pain, trouble and time expended.

[201] In my view, any court that undertakes the assessment of management fees/attorney’s fees should be guided by the approach set out in the well-known case of Re: Jeffrey Estate [1990] O.J. No. 1852 (Surr. Ct.), as approved in Laing Estate v. Hines, 1998 CanLII 6867 (ON CA), [1998] O.J. No. 4169 (OCA). In Re: Jeffrey, Killeen J. wrote at p. 179:

To me, the case law and common sense dictate that the audit judge should first test the compensation claims using the "percentages" approach and then, as it were, cross-check or confirm the mathematical result against the "five factors" approach set out in Re Toronto General Trusts and Central Ontario Railway, supra.

[202] For reference, the five factors that are set out at para. 23 of Re Toronto General Trusts Corporation v. Central Ontario Railway Co., [1905] O.J. No. 536 are (1) the magnitude of the trust, (2) the care and responsibility springing therefrom, (3) the time occupied in performing its duties, (4) the skill and ability displayed, and (5) the success which has attended its administration.

[203] In the present case, I note that the role of the manager of Joe’s funds will be limited to making decisions as to the investments and expenditures regarding Joe's monetary award. The manager’s role will not go beyond simple money management because Joe will have a case manager (to decide on medical/rehabilitation expenses) and an attendant caregiver (to provide personal care). Furthermore, some of Joe's monetary judgment will probably be placed in a structured judgment that will in itself limit the types of decisions that Joe's money manager will be required to make.

[204] With respect to a management fee for personal injury claims, I accept the analysis made by Glass J. in the case of Morrison v. Greig, [2007] O.J. No. 225. At paragraph 72-74, Glass J. reviewed the case law with respect to management fees in personal injury actions and determined that a reasonable management fee was 5% of the award. In my view, this amount is appropriate in the present case.

[205] Accordingly, I will award compensation to Joe for a management fee in an amount that is equivalent to 5% of the total amount awarded to Joe in this proceeding.

[FAMILY LAW ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) CLAIMS

[206] Pursuant to s. 61(2)(e) of the Family Law Act, R.S.O. 1990 c. F.3 (“FLA”), each of Maria, Mary, Chelsey, and Lindsay, make claims for “an amount to compensate for the loss of guidance, care, and companionship that the claimant might reasonably have expected to receive from (Joe) if the injury … had not occurred.”

[207] In addition, Mary makes a claim pursuant to s. 61(2)(d) of the FLA for a reasonable allowance for the value of services Mary has provided for Joe.

[208] Joe’s mother, Maria, was 77 years of age at the time of the accident. I find that she had a good relationship with Joe prior to the accident, even though Joe lived in St. Thomas and Maria lived in Niagara Falls. Joe visited Maria with his children every second weekend prior to the accident, and spent much of those weekends with his children at Maria’s house.

[209] Since the motor vehicle accident, Maria has suffered a loss of the care and companionship that she could have expected to receive from Joe. In the first several years post-accident, Joe could provide no care and little companionship for his mother. In recent years, I accept that Joe has provided some care for Maria as he has been able to drive her to some of her medical appointments, and he has helped with Maria's medications. However, I find that Joe's ability to care for Maria has been permanently compromised by this motor vehicle accident.

[210] I find that Maria’s loss of care and companionship becomes more acute as time goes on. Maria is now 87 years of age and is in declining health. I find that, but for the accident, Joe would have provided his mother with a significant amount of care as she aged and required more assistance.

[211] Further, I find that, particularly in the first few years post-accident, Maria provided care for Joe in the form of providing a home for him, cooking his meals, doing his laundry, cleaning, and helping him dress and bathe. I accept that the extent of the care provided by Maria to Joe has diminished over the years as Maria has aged.

[212] I assess Maria’s claim at $25,000.00.

[213] Joe’s daughter Lindsay was 16 years of age at the time of the accident and is currently 25 years old. At all relevant times she lived in Niagara Falls, New York, with her mother. Joe’s daughter Chelsey was 12 years of age at the time of the accident and is currently 21 years old. At all relevant times she lived in Windsor, Ontario with her mother.

[214] Prior to the accident, Joe was the non-custodial parent who had both of his daughters together on alternate weekends. I find that he had good relationships with his daughters, even though he was a non-custodial parent.

[215] Both Lindsay and Chelsey have suffered a loss of the guidance, care, and companionship that they could have expected from their father as they grew from young girls to young adults. They will continue to suffer this loss permanently.

[216] Both daughters provided some care for Joe by visiting him in the hospital and at his home in Niagara Falls after the accident. Both daughters have had to adjust their relationship with their father and learn how to deal with a father who has a brain injury.

[217] At the present time, they are able to have conversations with their father, but not in a normal manner. I accept the evidence that Lindsay and Chelsey must always lead any conversation in order to get information out of their father. Any social activities must be planned and directed by Lindsay or Chelsey; in essence the parent/child roles have been reversed.

[218] I assess the claims of each of the daughters at $40,000.00.

[219] Bieman-Copland recommended 30 hours of psychological counseling for each of Joe's daughters. In my view, there is no evidence that either of Joe's daughters have any interest in receiving psychological counseling. I will not allow this claim.

[220] Mary is six years younger than Joe. She is currently 48 years of age. I find that Mary and Joe had a very close relationship prior to the accident, and that they regularly socialized with each other. But for the accident, they likely would have continued to socialize with each other, and provide each other with guidance, care, and companionship as the years passed. Also, as the two youngest children, they likely would have worked together to care for their mother and father as their parents aged.

[221] Since the motor vehicle accident, Mary has suffered the loss of the guidance, care, and companionship that she would have received from Joe. At this point, Joe provides no guidance or care for Mary, and the type of companionship he provides is limited. Furthermore, as a result of the accident, Mary has assumed a large portion of the task of providing care for her brother.

[222] I also find that Mary acts as a conduit between Joe and the rest of the family. She is intensely aware of Joe’s problems. In addition to dealing with Joe’s problems, Mary attempts to translate his behaviour to the rest of the family.

[223] I assess Mary’s loss of guidance, care, and companionship at $50,000.00.

[224] Bieman-Copland recommended psychological counseling for Mary of 30 sessions at 1.5 hours per session. In my view, there is some need for psychological counseling for Mary as Mary has assumed a great deal of responsibility for Joe's circumstances and well-being. The strain on Mary has been significant, and counseling would be appropriate. I will allow this claim in the amount of $10,543.00.

[225] In addition, I find that Mary is entitled to compensation for the value of services that she has provided for Joe to date. Section 61(2)(d) of the FLA states that where “the claimant provides nursing, housekeeping or other services for the person” a reasonable allowance for the value of these services may be claimed as damages.

[226] In the Andrews case, at para. 41, the Supreme Court of Canada held that "dedicated wives or mothers" who choose to devote their lives to looking after injured family members are not expected to do so on a gratuitous basis. Accordingly, I accept that Mary, as Joe’s sister, is entitled to reimbursement for her caregiver services at market rates.

[227] I find that Mary has spent many hours every week since 2007 providing services for Joe. Mary testified, and I accept, that she assisted Joe most days by reviewing his schedule, by providing personal care for Joe, and by working with Joe on his routines and his activities. She has also prompted him with many of his activities of daily living, including dressing, grooming, personal hygiene, and meal preparation. There is no doubt that Mary’s dedication to her brother’s welfare has had a pronounced influence on Joe’s recovery to his present state.

[228] I accept that Mary did not provide caregiver services for Joe on a full-time basis. Mary’s services were not needed, for example, when Joe's professional therapists were present, or when Joe was in the community on his own. However, in addition to her conventional assistance, I find that Mary kept herself available for those occasions when Joe needed her, and those occasions were often unpredictable in time and duration. In essence, Mary was "on call" for whenever Joe had a problem and his therapists were not available.

[229] Mary testified, and I accept, that dealing with Joe’s perseverative thoughts is the most time-consuming aspect of caring for Joe, and that she spends anywhere from a couple of minutes to a couple of hours per day dealing with Joe's perseverations. Dealing with Joe’s perseverations was, I accept, a large part of the reason that Mary was “on call”.

[230] The plaintiffs’ calculations of the value of Mary's services, before discounting, amounts to $305,635.00. This represents attendant care for Joe eight hours per day, seven days per week, from May 2007 to January 2015, less approximately 16 hours per week for the times at which an RT was present with Joe. In this calculation, the plaintiffs used an hourly rate of approximately $17 per hour, and I have no difficulty with that hourly rate.

[231] However, in my view, without diminishing Mary's contribution to Joe's care, I find that the plaintiffs’ calculations as to the value of Mary's services should be substantially discounted. The evidence is clear that Joe has been independently engaged in activities in the community for much of his waking hours. Further, Joe has been seeing professional therapists or doctors for parts of most days of the week and during those times he would not have required Mary's services. Still further, Joe did not require any caregiver services in the evenings or while he was sleeping. Also, I accept that Mary has already received an indirect economic benefit from Joe because some of the money that Joe has already received has been used to pay utility expenses for the household that Mary and Maria would otherwise have had to pay.

[232] In summary, I accept that Mary has performed modest caregiver services on a daily basis, but I find that most of Mary's services related to Mary being "on call". I accept that Mary has had a heavy responsibility, but I find that there should not be full-time compensation for services that were mostly “on call” services.

[233] For these reasons, I will discount the plaintiffs’ calculations for the value of Mary's services by 60%. Thus, compensation to Mary pursuant to s. 61(2)(d) will be $305,635.00 times 40%, or $122,254.00.

CONCLUSION

[234] In summary, I find that Joseph Foniciello is entitled to damages as follows:

General Damages – $275,000.00

Future Loss of Income – $524,229.00

Past Medical/Rehabilitation Expenses – $51,282.00

Future Medical/Rehabilitation Expenses – $1,899,969.00

Attendant Care Expenses – $765,411.00

Management Fee (5% of above amounts) – $3,515,891.00 x 5% = $175,794.00.

[235] I find that Mary Foniciello is entitled to damages as follows:

Non-Pecuniary FLA Damages – $50,000.00

Future Counseling Expenses – $10,543.00

Value of Services Provided – $122,254.00

[236] I find that Maria Foniciello is entitled to FLA damages of $25,000.00.

[237] I find that Lindsay Foniciello is entitled to FLA damages of $40,000.00.

[238] I find that Chelsey Foniciello is entitled to FLA damages of $40,000.00.

[239] Therefore, I adjudge that the plaintiffs are entitled to the above-stated amounts from the defendants. The defendants, Bendall and Acculine, are jointly and severally liable to the plaintiffs for these amounts. As between the defendants, liability is apportioned 60% to the defendant, Bendall, and 40% to the defendant, Acculine.

[240] There are certain matters that arose during the trial and during submissions that I have deliberately not yet decided. For most of these matters, in my view, the parties required this decision on the substantive claims before they could finalize their positions.

[241] Accordingly, counsel may address the issues of costs, prejudgment interest, a possible structured judgment, a possible gross up, the applicability of statutory deductibles, and any other matters that arise out of this decision by contacting the trial co-ordinator to make arrangements to appear before me.

Henderson J.

Released: February 17, 2016

CITATION: Foniciello, et al. v. Bendall and Acculine, et al., 2016 ONSC 1119

COURT FILE NO.: 50466/08

DATE: 2016/02/17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Joseph Foniciello, Maria Foniciello,

Mary Foniciello, Lucy Foniciello,

Tony Foniciello, Lindsay Foniciello, and Chelsey Price-Mullins, a Minor Plaintiff by her Litigation Guardian Mary Foniciello

Plaintiffs

• and –

James Bendall, Sandra Bendall,

1177020 Ontario Inc. o/a Acculine Pavement Markings, Acculine Road Markings and the Corporation of the City of London

Defendants

REASONS FOR JUDGMENT

Henderson J.

Released: February 17, 2016