COURT FILE NO.: 14-59774
DATE: 2018/01/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARK ROLLEY, JOCELYN ROLLEY, EMILY ROLLEY, BENJAMIN ROLLEY, JOSEPH ROLLEY, TOMMY PAUPST AND ANGEL PAUPST
Plaintiffs
– and –
DOROTHY MACDONELL and BELAIR INSURANCE COMPANY INC.
Defendants
Joseph Obagi and Christopher Obagi, counsel for the Plaintiffs
Kirk Boyd and Sandra Lebrun, counsel for the Defendant, Dorothy MacDonell
HEARD: January 31, 2018
RULING At trial
Ruling No. 14
Evidence of the Defendant’s Occupational Therapist
CORTHORN J.
Introduction
[1] Mark Rolley was injured on January 10, 2012, when, as a pedestrian, he was struck by the defendant’s vehicle. Mr. Rolley alleges that the injuries he suffered include a mild traumatic brain injury resulting in post-concussion syndrome. He also alleges that he has required and will, for the rest of his life, require attendant care to assist him in maintaining a reasonable quality of life. The claim for damages for the cost of past and future attendant care services is the largest component of the damages claimed on behalf of the plaintiffs.
[2] Mr. Rolley had a number of pre-collision medical issues. The neuropsychologist who assessed Mr. Rolley in the years subsequent to the collision described his medical history as one of the most complex histories the neuropsychologist has ever seen. The defendant contends that the January 2012 collision is not the cause of Mr. Rolley’s post-collision symptoms, restrictions, and limitations.
[3] The trial of this action commenced in November 2017 before a judge and jury. It continued for four weeks and was adjourned on December 15, 2017. The trial continued, in the absence of the jury, on December 21 and 22, 2017, and January 10, 12, and 15, 2018. A number of interim matters were addressed on those dates with rulings subsequently made.
[4] The trial resumed on January 29, 2018, on which date the jury was formally discharged (2018 ONSC 508 – “Ruling No. 11”). The trial is expected to continue for the next four to five weeks before me as the trial judge, alone.
[5] The defendant served the plaintiffs with a report dated January 25, 2018, prepared by occupational therapist Bonnie Koreen (the “Koreen Report”). The defendant obtained and served the report in follow-up to two previous rulings (2018 ONSC 163 – “Ruling No. 10” and 2018 ONSC 650 – “Ruling No. 12”). The motions and cross-motion giving rise to those rulings were heard in December 2017 and January 2018.
[6] The defendant intends to call Ms. Koreen as a witness at trial to give evidence in accordance with the contents of her report. The defendant submits that, in her report, Ms. Koreen accepts that Mr. Rolley’s attendant care needs are as set out in the report prepared by Rebecca Robertson, the occupational therapist called on behalf of the plaintiffs (the “O.T.”). The defendant submits that the Koreen Report addresses practical ways in which Mr. Rolley’s attendant care needs can be met.
[7] The plaintiffs’ position is that the Koreen Report, in its entirety, does not comply with Ruling No. 12. As a result, the plaintiffs ask the court to find that Ms. Koreen is not entitled to give evidence at trial on the basis of the report.
Occupational Therapy Evidence
a) The O.T.’s Evidence and Interim Rulings
[8] Immediately prior to the adjournment of the trial in December 2017, the O.T. began testifying in chief. Her evidence includes that Mr. Rolley requires 4.22 hours per day or 29 hours per week of attendant care. The O.T. testified as to how, on a practical basis, Mr. Rolley may obtain attendant care assistance from a private health-care service (the “Delivery Model”).
[9] The O.T. had communicated with Bayshore Home Health in Cornwall, the area in which Mr. Rolley lives. The O.T.’s evidence as to the Delivery Model is that (a) the services of a personal support worker are charged by Bayshore at a rate of $27.50 per hour, and (b) there is a two-hour minimum for such services. In addition, the O.T. testified that Mr. Rolley requires attendant care at various points throughout the day, commencing when he gets up at 6:30 a.m. and continuing until he goes to bed 10:00 p.m.
[10] The defendant objected to the admission of that evidence at trial. In December 2017, I heard the defendant’s motion and plaintiffs’ cross-motion with respect to the scope of the evidence of the O.T. in support of the claim for damages for past and future attendant care.
[11] In Ruling No. 10, I found that the evidence of the O.T. with respect to the Delivery Model, including that the 4.22 hours per day are not continuous, is as to a factual matter. I ruled that the O.T.’s evidence in that regard is admissible at trial. I also found that if I am wrong in that regard, and the subject evidence is as to a matter of opinion, then the plaintiffs are granted leave to call that opinion evidence at trial.
b) Defendant’s Occupational Therapy Evidence
[12] In follow up to Ruling No. 10, the defendant brought a motion for relief with respect to evidence she wishes to call in response to the O.T.’s evidence. The primary relief requested was an order of the court permitting (a) Ms. Koreen to conduct an in-home assessment of Mr. Rolley’s attendant care needs, (b) the defendant to serve a report of that assessment, and (c) the defendant to rely at trial on Ms. Koreen’s evidence with respect to Mr. Rolley’s attendant care needs.
[13] In the alternative, the defendant requested that the defendant be permitted to rely at trial on a report prepared by Ms. Koreen in which she (a) critiques the O.T.’s opinion of Mr. Rolley’s attendant care, housekeeping, and home maintenance needs, and (b) addresses how Mr. Rolley’s attendant care can be met on a practical basis (what I termed, “the Delivery Model”).
[14] In Ruling No. 12, I determined that:
a) It was too late in the proceeding for an expert retained on behalf of the defendant to meet with Mr. Rolley and prepare a report in which the expert opines on matters that have already been the subject of evidence called as part of the plaintiffs’ case (para. 25 of Ruling No. 12);
b) The defendant was not entitled, four weeks into the trial, to obtain and serve a report in which Ms. Koreen opines on the number of hours per day or per week of attendant care that Mr. Rolley requires (para. 27 of Ruling No. 12); and
c) The defendant was entitled to obtain a report from Ms. Koreen with respect to the Delivery Model and is entitled to rely on Ms. Koreen’s evidence in that regard. I defined the “Delivery Model” as “the practicalities of providing Mr. Rolley with 4.22 hours per day or 29 hours per week of attendant care” (para. 12 of Ruling No. 12).
[15] The Koreen Report is 24 pages in length. On the title page of the report it is described as “Occupational Therapy Opinion”. Ms. Koreen begins the report with a section titled, “Purpose of Assessment and Overview”:
Directions from Mr. Boyd were to conduct a thorough review of the documentation on the matter and to provide a professional opinion regarding whether the expenses itemized in Ms. Robertson’s March 29, 2017 Occupational Therapy report are reasonable and whether there are alternative delivery models available for the recommended care.
[16] The report includes a history of the January 2012 collision giving rise to this action and Mr. Rolley’s course of treatment. It also includes a review of documentation, Mr. Rolley’s pre-accident medical history, level of function, and medication. In nine pages, Ms. Koreen sets out what she calls, “Comments Regarding Ms. Robertson’s March 29, 2017 Occupational Therapy In-Home Functional Assessment Report including recommendations regarding Delivery of Recommended Services”.
[17] I describe the Koreen Report as a report of an in-home assessment without the ‘in home’ part. The report is, for the most part, a critique of the O.T.’s opinion, and the reasonableness of the opinion, that Mr. Rolley requires 4.22 hours per day of attendant care. As part of the critique, Ms. Koreen identifies strategies that might be employed by Mr. Rolley, as an alternative to some of the attendant care recommended by the O.T. The end result of the strategies identified is the opinion expressed by Ms. Koreen that Mr. Rolley requires two hours per day of attendant care.
[18] I find that the Koreen Report does not comply with Ruling No. 12; the contents go far beyond the scope prescribed by Ruling No. 12.
[19] It is not open to the defendant to have Ms. Koreen address the 4.22 hours per day or 29 hours per week in the manner in which she has done so in her report. For example, Ms. Koreen groups some of the needs identified so that the total of 4.22 hours per day is reduced. She also suggests the use of technology and various assistive devices in place of a personal support working providing attendant care.
[20] The only matter on which Ms. Koreen is permitted to give evidence – whether as a factual matter or a matter of opinion – is as to how, on a practical basis, Mr. Rolley may obtain the 4.22 hours per day or 29 hours per week of attendant care recommended by the O.T.
Disposition
[21] The portions of the Koreen Report that comply with Ruling No. 12 and about which Ms. Koreen is permitted to give evidence at trial are limited to the following passages from pages 21 and 22 of the report:
o Agency Hire:
o A review of the agency offered PSW services in the Cornwall/St. Andrew’s area reveals the following:
▪ Paramed, 613 932 4661, offers PSW services at $31.00 per hour plus HST and has a one hour minimum of service requirement
▪ Bayshore, 613 226 6782, offers PSW services at $31.00 per hour plus HST and has a two hour minimum of service requirement
▪ St. Elizabeth, 613 936 8668, offers PSW services at $28.00 per hour plus HST and has a two hour minimum of service requirement
o With this information, it is considered reasonable to employ the services of Paramed, for two hours per day, split between morning and evening, at a cost of $31.00 per hour plus HST
Note: I have placed a line through “for two hours per day” so as to highlight that Ms. Koreen is not permitted to express the opinion that Mr. Rolley requires less than 4.22 hours per day of attendant care.
o Private Hire:
▪ $15.74 per hour plus HST, 2 hours per day for an annual cost of $11,490.20 plus HST
Note: The footnote in the Koreen Report identifies the source of this hourly rate as “Pay Scale Human Capital”.
[22] The evidence as to the annual cost associated with two hours per day of private hire services is admissible solely for the purpose of the arithmetic calculation. It is not admissible as opinion evidence with respect to Mr. Rolley’s daily attendant care needs.
[23] The evidence with respect to the cost of agency hire and private hire personal support workers is repeated at page 23 of the Koreen Report. In that section of the report, Ms. Koreen provides an arithmetic calculation for the annual cost associated with two hours per day of services from a personal support worker on either basis. Once again, the evidence as to the annual cost associated with two hours per day of services from a personal support worker is admissible for the purpose of an arithmetic calculation. It is not admissible as opinion evidence with respect to Mr. Rolley’s daily attendant care needs.
[24] The cost of handyman services is addressed in the Koreen Report. Ms. Koreen identifies that such services cost $37.00 per hour plus HST. The source of that information is Mike Tremblay Home Improvement, Handyman Services. The plaintiffs do not object to Ms. Koreen giving evidence with respect to the cost of such services. She is permitted to do so.
Madam Justice Sylvia Corthorn
Released: January 31, 2018
COURT FILE NO.: 14-59774
DATE: 2018/01/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARK ROLLEY, JOCELYN ROLLEY, EMILY ROLLEY, BENJAMIN ROLLEY, JOSEPH ROLLEY, TOMMY PAUPST AND ANGEL PAUPST
Plaintiffs
– and –
DOROTHY MACDONELL and BELAIR INSURANCE COMPANY INC.
Defendants
RULING at trial
Ruling No. 14
Defendant’s Occupational Therapy Evidence
Madam Justice Sylvia Corthorn
Released: January 31, 2018