Court File and Parties

COURT FILE NO.: CV-09-616-00 DATE: 20170516 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE ROBINS Plaintiff

– and –

WAYNE KENNETH WAGAR, JAMIE ALVES, and THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, TYENDINAGA MOHAWK POLICE, NORTH SHORE TABACCO, ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, LILY LAFORTE, JAMES KUNKEL AND THE MOHAWKS OF THE BAY OF QUINTE Defendants

Counsel: Graham F. Sirman, for the Plaintiff

HEARD at Kingston: 16 May 2017

REASONS FOR JUDGMENT

Mew J. (Orally)

[1] Sylvia Robins was tragically killed in a car accident on the 22nd of February, 2009. Wayne Kenneth Wagar was criminally convicted as a result of the accident. He was driving the vehicle that struck the vehicle occupied by Sylvia Robins. Wagar was uninsured, unlicensed and impaired by alcohol.

[2] The defendants sued in this action have all now been released or settled with, with the exception of Wagar. He has been noted in default. The widower of Sylvia Robins, George Robins, now seeks judgment against Wagar for damages pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3.

[3] By virtue of his being noted in default, Wagar is deemed to be liable for the accident that took Sylvia Robins' life. What remains is to assess what he is responsible for paying.

[4] The nature of Mr. Robins’ claim is eloquently captured in paragraph 3 of his Affidavit, sworn on the 16th of March, 2016, which says as follows:

My wife Sylvia's death was absolutely devastating to me. I am dealing with my emotions on a daily basis. Attached hereto and marked as Exhibit C is a copy of the Victim Impact Statement I prepared some time ago, during Wayne Kenneth Wagar's prosecution. Additionally, I am legally blind, and without hearing in one ear. My wife Sylvia provided to me, during our marriage, a tremendous amount of care and support in allowing me to carry out a normal life, given my disabilities. In this action, therefore, my claim for damages involves not only a claim for loss of care, guidance and companionship, but a very significant claim for past and future attendant care.

[5] Section 61 of the Family Law Act provides that, if a person is injured or killed by the fault or neglect of another, various enumerated individuals, including the spouse of such a person, are entitled to recover "their pecuniary loss resulting from the injury or death of the person from whom the person injured or killed is entitled to recover, or would have been entitled, if not killed, and to maintain an action for the purpose in a court of competent jurisdiction".

[6] Subsection (2) of s. 61 expressly provides that the damages recoverable in a claim under s-s. (1) may include, referring to sub-paragraph (e): "an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred".

[7] In the case of Parsons Estate v. Guymer et al. (1998), 40 O.R. (3d) 445 (C.A.), the Court considered the claim by a recently-retired executive, who was 62 years of age when a motor-vehicle accident occurred which resulted in the death of his wife. About four months later, the plaintiff suffered a stroke, which was not caused or contributed to by the accident, but which left him unable to care for himself.

[8] One of the issues that arose was whether or not, in determining the damages payable by the responsible party in the motor-vehicle accident claim, such damages should include consideration of the services and care that would have been provided for Mr. Parsons, the plaintiff, by his wife, had she not been killed in that accident.

[9] Madam Justice Weiler said this at paragraphs 10 and 11 of the Court of Appeal's decision:

In assessing damages, it is the value of the services by the particular wife to the particular husband which must be determined. While the loss of the stroke-related caregiving functions that Margaret would have provided is incapable of strict arithmetical calculation, one starts with the proposition that the services which Margaret would have provided as a result of the appellant's stroke have a quantifiable economic value. In assessing the loss of Margaret's stroke-related care, the cost of replacing that care in the market place is an important measure which has two aspects. As a result of his stroke, Mr. Parsons is unable to engage in certain physical activities. He is also unable to perform certain management functions pertaining to his daily living because he lacks judgment. The appellant had a reasonable expectation that, had his wife not been killed, she would have provided the physical and managerial care he required as a result of his stroke.

It is not necessary for the injured person to prove that someone was actually employed to the date of trial or will be employed in the future, to perform these caregiving functions. The aim of damages is to place the injured party as nearly as possible in the situation he or she would have been in but for the actions of the tortfeasor.

[10] Section 61 talks of pecuniary loss. However, as cases assessing damage pursuant to s. 61 have evolved, it does appear that both pecuniary and non-pecuniary losses are captured by this legislative provision. That much was confirmed by Mr. Justice Linden in Thornborrow v. MacKinnon (1981), 123 D.L.R. (3d) 124; 32 O.R. (2d) 740, a decision of the Ontario High Court of Justice, where he said, at page 129 (D.L.R.):

From now on, the damages awarded for injury to a child, or for the loss of the life of a child, include not only pecuniary losses but also the non-pecuniary elements of guidance, care and companionship that parents and other relatives received from the child. Thus, when a member of the family is injured or killed, the courts are now required to compensate the other members of the family for the other members of the family for certain losses they may suffer as a result, both economic and non-economic.

[11] So, in this matter, we have two considerations. There is what might be called the conventional range of figures that have emerged for the loss of guidance, care and companionship of a spouse. A recent authority cited by counsel, dealing with such claims, and included in the Book of Authorities, Fiddler v. Chiavetti, 2010 ONCA 210, suggests that those ranges have become somewhat conventional, with a recognized upper limit of approximately $125,000. But we also have the types of claim describe by Madam Justice Weiler in the Parsons case, where there are more quantifiable losses that are economic in nature.

[12] I do not read the cases, and in particular the Parsons case, as precluding an approach to evaluation of a claim under s. 61(2)(e) of the Family Law Act which includes consideration of the actual economic losses that have been suffered by someone in the position of Mr. Robins. Indeed, to use the language of Madam Justice Weiler, the cases do not eliminate an assessment of the value of services by a particular wife to a particular husband.

[13] In the present case, the circumstances are exceptional. Sylvia Robins was effectively Mr. Robins' caregiver, and she was certainly his eyes and, to a lesser extent, his ears. Since her death, the circumstances of Mr. Robins have been described in a report prepared by an occupational therapist, Julia Sutton of Swanson & Associates. She notes in her report as follows - appreciating this report was in April, 2010, but the submission of Mr. Sirman was to the effect that this continues to accurately reflect the circumstances:

Mr. Robins currently lives alone. His daughter and four grandchildren also live in Napanee. He relies on his daughter for assistance. However, she works both a full-time and a part-time job, and is busy with her family. Mr. Robins relies on friends to provide support, but that support has diminished over time. He has benefited from the services of an intervenor from the CNIB who visits him for three hours each week, and this individual assists Mr. Robins with household and community activities.

[14] Clearly, he has been, and the reasonable assumption seems to be that he will remain, in the future, requiring the type of support and assistance indicated in the Swanson & Associates report. And, of course, as he gets older, his needs are likely to increase.

[15] Ms. Sutton's report recommends three types of assistance that Mr. Robins requires.

[16] Firstly, he needs personal care assistance, for such things as personal grooming, dressing, foot care, and other personal needs. Secondly, he requires home maintenance assistance, including such services as cleaning, daily assistance with tidying, garbage and recycling removal, lawn maintenance, snow removal, and general indoor maintenance and repairs as required, and daily assistance with reading mail, and financial management activities. Thirdly, he requires assistance with transportation and community mobility, for the purpose of attending medical appointments, participating in leisure and volunteer activities, and socialization.

[17] The value of these services, suggested by Ms. Sutton, totals $130,681 per annum. Back in 2010, an actuarial projection calculated that, at that time, the present value of the provision of such services, going forward from 2010, in 2010 dollars, would be $880,701.59, and that would be only until Sylvia Robins would have reached the age of seventy. Thereafter, it could be expected that she would contribute to provide, at least, transportation assistance, valued at $32,825 per annum.

[18] Mr. Sirman indicates, candidly, that Mr. Robins has not actually received all of these services, and no doubt there are economic reasons for his not having done so. However, what is important, and what is underscored by the approach which Madam Justice Weiler postulates, is that, had Sylvia Robins been alive, she would have provided Mr. Robins with most, if not all, of those services. He has been deprived of them, and his quality of life has been significantly diminished, as a result. It seems to me that that is part of what the loss of guidance, care and companionship, for someone who has lost a spouse, is comprised.

[19] It is very clear to me, appreciating the fact that the actuarial projections are somewhat out of date, that if an actuarial work-up was to be done today, the present value of past and future services would result in a very significant assessment. Mr. Sirman, fairly and correctly, in my view, does not seek a strict actuarial amount of damages. However, he does seek an amount which reflects an appropriate recognition of the significant and permanent loss which Mr. Robins has suffered.

[20] In my view, such an amount would be $390,000. That is not a number that I have plucked out of the sky. It is the equivalent of three years at $130,681 - bearing in mind that Ms. Robins would be 67, now, if she were still alive, and the evidence before me indicates that a valuation of services that she would provide would be approximately $130,681 per annum. However, as Madam Justice Weiler said, a strict arithmetic approach is not appropriate. The amount of $390,000 is intended to reflect the services of which Mr. Robins has been deprived for the past eight years and going forward, and the care, guidance and companionship of his wife, that he could have reasonably expected to have received, but for the negligence of Mr. Wagar.

[21] Therefore, I am going to give judgment in that amount. In doing so, Mr. Sirman has indicated to me that his client reached a settlement with Dominion of Canada General Insurance Company - Dominion being the insurer of the vehicle in which Ms. Robins was a passenger - up to the maximum available limit of $200,000, and that part of that arrangement requires an assignment of any judgment recovered by Mr. Robins to Dominion Insurance. So, on that basis, I am satisfied that there is no double recovery on the part of Mr. Robins, with respect to the $200,000.

[22] I should also record that Mr. Sirman disclosed that a further $50,000 had been obtained by way of settlement from other defendants, without any further recourse on the part of those parties. Because the amount which could have been awarded, on an actuarial basis, by way of damages against Mr. Wagar, could have been a lot greater than $390,000, I see no offence to the principle against double recovery, if that $50,000 figure is effectively ignored, for the purposes of Mr. Robins collecting those damages from Mr. Wagar. So, to be clear, he does not need to give any credit for the $50,000 figure.

Submissions Made Regarding the Form of the Order and Costs

[23] The order is fine. I have just added, to the recitals, that the action against the other defendants was dismissed by order of the Registrar on the 19th of June, 2015.

[24] I have included, in addition to damages of $390,000, $4,500 for costs, which is inclusive of HST and disbursements.

Graeme Mew J.

Handed down: 16 May 2017 (orally)