Court File and Parties

COURT FILE NO.: 681-17 DATE: 2019-12-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carlos Loye, Plaintiff AND: George William Bowers, Litigation Administrator for the Estate of Laurie Bowers, deceased, Defendant

BEFORE: Turnbull, J.

COUNSEL: Georgiana Masgras and Kevan Wylie, Counsel, for the Plaintiff Elisabeth van Rensburg and Rachel Pano, Counsel, for the Defendant.

HEARD: December 6, 2019

REASONS WITH RESPECT TO JURY QUESTIONS

TURNBULL, J.

[1] The plaintiffs have closed their case in this personal injury case. In a ruling released yesterday, I granted leave to the plaintiff to re-open his case to file his income tax information for the calendar years 2012 to 2018.

[2] There are three issues which the plaintiff wishes to be considered by the jury, which the defendant strongly opposes. They involve:

a. Damages for future loss of housekeeping and home maintenance able to be performed by the plaintiff;

b. Damages for the cost of future care for the plaintiff;

c. Damages for loss of income under the following headings:

1. Loss of income to date of trial,

2. Future loss of income,

3. Loss of competitive advantage or working capacity.

[3] Our courts have consistently held that in order for a question to be put to a jury, there must be an evidentiary foundation. The Ontario Court of Appeal has held that there must be "reasonable evidence" to allow a question to be given to a jury to allow it to act judicially in accordance with the judge's instructions on the law, in order to arrive at an answer.[^1]

Overview of the Issue:

[4] The plaintiff has been suffering from osteo-arthritis in his right shoulder since at least 2010. The evidence of his family physician confirms that he complained of right shoulder pain and limitation of movement fairly regularly. An x-ray taken in 2012 showed advanced osteo-arthritic changes in the right shoulder with marked narrowing of the joint space.[^2] In 2013, he was referred to an orthopedic specialist for assessment. In July 2014, the plaintiff underwent endoscopic surgery to the right shoulder to assist him with some of his symptoms. Due to ongoing pain and limitations with his shoulder, his employer allowed him to return to work as a machinist on modified duties in September 2014 and he worked on modified duties to the time his employment was terminated three months after the motor vehicle accident which is the subject of this action.

[5] The plaintiff alleges that in the subject motor vehicle accident, he exacerbated the problems he had been enduring with his right shoulder. While he stated he suffered a soft tissue injury to his neck, it has largely resolved. The issue which is front and centre for the jury is his right shoulder. He seeks an award for general damages for pain and suffering and loss of enjoyment of life. He further seeks damages for the three heads of relief articulated in paragraph 2 hereof.

Claim for Future Housekeeping and Home Maintenance Losses:

[6] Mr. Loye explained that before this accident, he did approximately fourteen hours of housekeeping related chores each week. Those included moving furniture, minor repairs in the apartment such as replacing lightbulbs, vacuuming his family's three bedroom apartment, caring for his six children, who make a real mess sometimes in the apartment, doing the laundry at a nearby laundromat, grocery shopping for the family, helping the younger children get dressed, taking the garbage outside for recycling and taking the children to soccer. He agreed in his cross examination that because they live in an apartment building, no outside work such as lawn cutting, gardening or snow removal is required.

[7] At present they still live in the same apartment building. He testified that he is now only able to do two to three hours per week of the housekeeping chores outlined above. He will do some vacuuming if his wife, who also works nights outside the home, is too tired. Mr. Loye agreed that his eldest daughter and son help with many of the housekeeping chores he used to do and that he felt it was good for them to learn to accept familial responsibilities for those things. He agreed that he is able to do some grocery shopping and some laundry if need be, but certainly not like before the accident. He testified that his wife and daughter mainly do those tasks now. He is able to fold clothes and if need be, he can do some laundry in the facility located in the basement of the apartment building.

[8] Roda Worde, the wife of Mr. Loye, testified about the housekeeping role played by her husband in their household. In her examination in chief, she indicated that before the accident he did a lot of things inside the house such as cooking once or twice a week and making traditional Sudanese food for the family such as lady fingers, porridge and soup. He did the vacuuming and took out the garbage two or three times per week. He helped take care of the children and played football with them as many as three times per week. He would take the laundry to the laundromat near the Fairway Mall once per week. The family grocery shopping was all done by him.

[9] After the accident, Ms. Worde testified that his help in all these matters significantly decreased. He reduced his frequency of cooking to perhaps one time per week. He no longer takes out the garbage. He has reduced his vacuuming as it is more difficult for him to do it with just his left arm. If there is something which needs to be repaired in the apartment, she now calls the building maintenance people to do the corrective work. While he still does do some shopping with the children, he does so less frequently, and Ms. Worde does it much more often. She also has assumed the responsibility of doing the laundry with her son and daughter. Mr. Loye assists in folding the clothes. He plays with the children less frequently now and when he does take them to play football, he does not play with them.

[10] In her cross-examination, she estimated that pre-accident, Mr. Loye spent approximately eight hours per week helping with housekeeping and home maintenance activities. After the accident, she estimated it was reduced significantly.

Position of the Defendant re the Claim for Future Housekeeping and Home Maintenance Activities:

[11] The plaintiff has not presented any evidence of functional limitations from a qualified professional in that area. There has been no report prepared showing a calculation of the net present value of the future loss of household services that the plaintiff will experience during his lifetime assuming a 100 per cent loss or any other diminished loss calculation due to the plaintiff's pre-existing severe osteo-arthritis of the right shoulder. While the discount rates specified in Rule 53.09(1) of the Rules of Civil Procedure are available to the court, the survival rates for a male such as Mr. Loye are not available to the jury. There is also no medical evidence with respect to when he will undergo a shoulder replacement (if ever) and the effects that surgical procedure may have on his ability to do household chores.

[12] Counsel for the defendant argued that for any future loss claim to succeed, the plaintiff has the onus to prove, on evidence adduced and not on mere speculation, that there is a real and substantial probability that the plaintiff will suffer the damages claimed. She noted that the jury has been given no economic evidence of the cost of housekeepers in the Kitchener region and the cost to do the work formerly done by Mr. Loye, minimal medical evidence that the post accident limitations are probably due to the subject accident[^3], no evidence of what effect a shoulder replacement may have on his ability to resume some or all of his pre accident activities, or when it is possible or probable that his shoulder surgery will occur. It is arguable that such surgery will not only eliminate his joint pain but enable him to perform many of the homemaking functions which he is presently unable to do.

[13] The plaintiff urged the court to use a $25 per hour rate for housekeeping as used by the court in Placzek v. Green, 2011 ONSC 1287. However, as noted by the defendant's counsel, that figure was agreed to by the parties.

Conclusion on Claim for the cost of Future Housekeeping and Maintenance Activities:

[14] I concur with the position of the defendant. For questions of pecuniary damages, there must be sufficient evidence upon which a jury can quantify those damages. In Johnston v Walker, 2017 ONSC 3370, Charney J. of this court was presiding over a jury trial. He was met with an objection by the defence similar to the one facing this court, namely an argument that the plaintiff had failed to provide sufficient economic, accounting or medical evidence to support a claim for loss of earning capacity. Finding that to ask the jury to assess the loss of earning capacity would be akin to asking the jury to speculate and pull a "dollar figure out of thin air", he based his decision to refuse to put such a question to the jury on a decision of the Ontario Court of Appeal in TMS Lighting Ltd. v KJS Transport Inc., 2014 ONCA 1 at para. 65:

It is not open to a trial judge to postulate a method for the quantification of damages that is not supported by the evidence at trial. Nor is it open to a trial judge to employ an approach to the quantification of damages that the parties did not advance and had no opportunity to test or challenge at trial... To hold otherwise would sanction trial unfairness.

[15] That reflects the very situation before this court. The defendant had no basis to know how the plaintiff planned to calculate his claim. No expert reports or other functional abilities assessments were provided. No accounting estimations, present value calculations, contingency allowances or medical evidence has been provided to the court or to the defendant. This claim lacks the evidentiary basis to be put to the jury and it is so ordered.

Claim for Loss of Capacity to do Housekeeping and Home Maintenance Activities:

[16] Alternatively, the plaintiff submits that a claim for loss of past or future housekeeping or home maintenance capacity does not have to be quantified by economic evidence or by functional assessment analysis and appropriate costing. In that respect, she relies upon the case of McIntyre v Docherty et al, 2009 ONCA 448, 97 O.R. (3d) 189

[17] In that decision, Lang J.A. considered the approaches taken by both British and Canadian courts to various housekeeping and home maintenance claims in personal injury actions. The court held that the trial judge did not err in putting future housekeeping costs to the jury in the absence of evidence that the plaintiff had a firm intention to hire someone to do the work for compensation. The plaintiff was not required to commit in her evidence that she intended to hire a third party to perform such work. The court ruled that it was the choice of the plaintiff to either spend whatever amount was granted by the jury for that head of damage to hire a homemaker to help her or to endure the pain and discomfort of doing the work herself, more slowly, and to use the monetary award in whatever way she felt was most beneficial to herself. In her analysis of claims for housekeeping and home maintenance activities, Lang J.A. discussed the very situation before this court in the matter at bar. Where a plaintiff has had to reduce his housekeeping and home maintenance activities from the time of the accident to the time of trial, in the absence of specific expenses incurred and proved, that claim is to be included in the assessment of non-pecuniary damages for the loss of pain, suffering and enjoyment of life.

[18] The Court of Appeal dealt with this aspect of the plaintiff's claim at paras. 70, 73 and 74 of McIntyre v. Docherty, supra. Lang J.A. identified the loss of an unpaid homemaker as being the loss of enjoyment, self esteem, sense of contribution to the family or household and in some cases the loss of amenity of an organized household. The court indicated that such a loss is incorporated in a general damage claim and the jury can be directed accordingly. To the extent that the plaintiff does such work in pain and discomfort and "inefficiently", his or her non pecuniary award would be increased (in the discretion of the jury) to reflect such loss.

[19] That is what will be included in the charge to the jury in this matter. A separate question will not be posed.

Claim for Cost of Future Care:

[20] Counsel for the plaintiff wishes a question to be put to the jury with respect to the plaintiff's possible costs of future care.

[21] Mr. Loye testified that he has never taken prescription pain medication due to this accident, just as he had not prior to the accident. He has been dealing with his pain pre and post accident by using Voltaren, Advil or Tylenol. To counteract some of the pain he was experiencing when trying to sleep, he has been using an ointment recommended by his family doctor. He acknowledged that he started sometimes using it two times per day after his motor vehicle collision of 2014. After the accident of December 26, 2015, he testified that he has to use it much more frequently. He estimated that it costs approximately $20 to $25 per package of ointment which he has to replace approximately every two weeks. He did not provide any receipts to support such claims nor a number of receipts to reflect the frequency of purchase over any period of time. He estimated the cost of a container of Tylenol at about $15 per bottle and stated that he uses about half a bottle of Tylenol per week since the subject accident. However, he again did not produce evidence of the size of the bottle nor receipts to prove frequency of use and frequency of repetition of purchase.

[22] Mr. Loye's counsel argued that an amount should also be awarded for future physiotherapy costs and future chiropractic costs which will be incurred by the plaintiff. She noted that he has been unable to pay for such treatments regularly because of the family's financial situation but, at a minimum, he will have $200 for such treatments from the extended coverage available through his wife's employer.

[23] The defendant notes that once again, there was no evidence led by the plaintiff with respect to the medical need and medical efficacy of such treatments at this time and into the future. Similarly, the costs of those treatments to date and the cost of anticipated treatments were not provided to the court. Dr. Paton was not asked the cost of each chiropractic treatment when he testified. He, nor Dr. Abdalla, were asked if a shoulder replacement occurs, whether such treatments would continue to be necessary. The same questions were not asked of the plaintiff's independent orthopedic medical specialist Dr. West during his testimony. There was no costing of the proposed treatments and no present value calculations provided with respect to quantifying them. Accordingly, the defendant has had no opportunity to obtain opinions from qualified persons to opine on the necessity, the frequency, the cost and the duration of such treatments.

[24] I find that for reasons very similar to those given in refusing the claim for future homemaking and household maintenance expenses, the insufficiency of evidence does not permit the question to be put to the jury. To do otherwise would be unfair to the defendant and the jury. Effectively, we would be once again asking the jury to pull a figure out of thin air.

[25] A question with respect to the cost of future care will not be put to the jury as there is no evidentiary foundation upon which the jury could make a judicial decision. It would be a speculative decision, at best.

Loss of Income from the Date of the Accident to the Date of Trial:

[26] The plaintiff was employed at Linemar from July 1, 2011 to March 15, 2016. Thereafter he worked briefly as a truck driver and a bus driver, received Employment Insurance Benefits and some Social Assistance, and currently in 2019 is self employed as an Uber driver. His income tax returns indicate the following:

2012: $46,787.00 total income.

2013: $20,755.00 total income. $12,180.00 Employment Insurance Benefits $33,087.00 Total Income for 2013.

2014: $39,368.00 Total Income.

2015: $13,686.00 Total Earnings $17,292.00 Employment Insurance Benefits $30,978.00 Total Income for 2015.

2016: $23,672.00 Total Earnings $12,867.00 Employment Insurance Benefits $8,737.00 Social Assistance Payments $45,276.00 Total Income for 2016.

2017: $ 8,133.00 Total Income for 2017.

2018: $19,215.41 Total Income for 2018.

[27] In 2016, after his employment at Linemar was terminated without cause, he received employment insurance benefits for a number of months before deciding to change his career path by taking training as a truck driver. He obtained a certificate from a firm called Tri County where he took training as a truck driver. However, he testified it did not prepare him properly for the work he thereafter sought.

[28] He was employed as a trainee at Challenger Motor Freight Inc from December 12, 2016 to January 4, 2017. The plaintiff did file exhibit 23 which is a Record of Employment from Challenger showing insurable earnings for that period to be $1872. Exhibits 24 and 25 are the T4's issued by Challenger for the income earned by the plaintiff while employed at that firm for the calendar years 2016 and 2017. The number of days worked, the hourly or daily rate paid, and his potential income, if he was qualified as a full-time driver, were not provided.

[29] Mr. Loye filed as exhibit 27, his record of employment from Sharp Bus Lines for the period from January 30, 2017 to March 10, 2017. It shows he earned income in that period of $2,120.88. A further record of employment from March 20, 2017 to April 21, 2017 from Sharp Bus Lines was entered as exhibit 28. In that period, he earned $1408.91 for 94 hours of work which is pay at just under $15.00 per hour.

[30] He then testified he received Employment Insurance benefits for nine months or so during 2017.

[31] For the year 2018, the plaintiff filed his T4 slip from Sharpe Bus Lines which indicates he earned $13,390.29 during that calendar year. That presumably is based on him driving on school days for just four hours per day as he indicated in his examination in chief. There was no medical evidence led that four hours constituted his maximum work tolerance without unduly exacerbating the pain in his right shoulder.

[32] At exhibit 32, the plaintiff filed his 2018 T4 for the short period he worked as a truck driver at Schneider National Carriers Inc. He earned $4,825.12 during that time but provided no evidence with respect to how many hours he worked, how many miles he drove, how much he earned per hour etc.

[33] For the year 2019, the plaintiff filed his personal records from driving for Uber as Exhibit 28. The first two pages (pages 338-339) show payments made to him for work done from January 14, 2019 to May 20,2019. The entries on page 1 for the periods ending May 13th and May 20th, 2019 are reflected in the weekly summaries found at pages 340 and 341 of the exhibits. The amounts for each week thereafter to the end of October are found at pages 342 to page 365. From my review of the invoices, the plaintiff received payouts of $23,998.72 from driving for Uber in that period of time. That is gross revenue and does not reflect the costs of gas and oil and maintenance expenses associated with the running of a car. The invoices indicate he did not drive for a number of weeks. He attributed part of that time off in July 2019 because his vehicle was rear ended in a collision and he did not have a vehicle to drive for awhile. He stated that some of the other time off was due to the fact he was experiencing too much pain in his shoulder and needed to rest it. For whatever reasons, the clinical notes and records of Dr. Abdalla filed as exhibit 42 record no appointments after June 19, 2019.

[34] Counsel for the plaintiff presumably wishes to have the jury accept that, but for the accident, the plaintiff would have continued his employment at Linemar. However, there is no evidence from Linemar indicating:

a. His employment would have been available to him from 2016 to present.

b. That modified work would have been available to him for that period of time.

c. The salary or hourly rate that he would have been paid, if employed.

d. Any information about temporary layoffs which have occurred in the interim and their duration.

e. Any information about permanent layoffs which have occurred in the interim.

[35] The plaintiff has provided no evidence of his efforts to find employment other than for indicating the jobs he did find. It is trite law that the plaintiff has a duty to mitigate his damages and to prove evidence of such mitigation.

[36] Mr. Loye did not testify about the amount he was claiming for short term loss of income nor did he explain how that was calculated. The suggestion that his termination from Linemar was due to his physical limitations is not supported in the exhibits filed.[^4] The jury has no way of knowing with any degree of accuracy how to calculate a loss of income from the time of the accident to the date of trial from the information provided by the plaintiff. At best it would be a guess. It simply is not fair to the defendant to not provide sufficient information so that the theory of the plaintiff or even better, the calculations of the plaintiff can be challenged in cross examination and possibly with countering evidence.

[37] If the plaintiff can't articulate his claim, it should not fall to the jury to speculate what the plaintiff has in mind. The plaintiff has the burden of proof on a balance of probabilities and in my view, there is insufficient evidence to put a question to the jury on the plaintiff's loss of income from the date of the accident to the date of trial.

[38] A question will not be posed to the jury to calculate a loss of income to trial.

Loss of Competitive Advantage.

[39] The plaintiff submits that the jury is able, without expert functional assessment testing or vocational evidence, to assess if the plaintiff has suffered a loss of competitive advantage as a result of the subject motor vehicle accident.

[40] In that respect, Mr. Wylie relied heavily on the case of M.B. v. British Columbia, 2003 SCC 53, [2003] 2 SCR 477, where the Supreme Court of Canada characterized the loss of one's earning capacity as the loss of an asset. The issue is whether the asset has been diminished or lost in this particular case as a result of the subject motor vehicle accident. If it has been so affected, the courts have recognized that the method of valuing the loss varies from case to case, depending on the facts. In Brown v. Golaiy et al, 1985 CanLII 149 (BC SC), [1985] BCJ No 31 (QL), 26 BCLR (3d) 353, Finch J. offered some considerations for other courts to consider when faced with this issue. They include a reduction of the plaintiff's capability to earn income from all types of employment, reduced marketability or attractiveness of the employee to potential employers, the loss of the opportunity to accept all job opportunities which otherwise would have been open to him had he not been injured, and diminished ability to earn income in a competitive labour market.

[41] In claims such as this for damages for personal injuries, vocational and economic/accounting evidence is usually led by a plaintiff to found such a claim. In this case the plaintiff has chosen to do neither. The plaintiff relies on Fiddler v Chiavetti et al, 2010 ONCA 210 at para 65 as authority that expert evidence need not always be called to prove a wage loss. He submits that the jury is able to consider the evidence presented as a whole and to determine if there is a real and substantial risk the plaintiff's earning capacity will be reduced as a result of this accident.

[42] Mr. Wylie argued that there is some evidence of loss of competitive advantage or loss of earning capacity and some of these pieces of evidence are as follows:

a. His performance reviews from Linemar for the years 2012 to 2015 are inclusive;

b. He had a settled line of employment with a regular salary at Linemar;

c. His payroll change notice filed as exhibit 18 shows he could reasonably have expected to enjoy regular increases of salary;

d. The range of motion tests done by Dr. West and Dr. Paton are both similar and the jury can infer a loss of earning capacity due to the objectively found restrictions and the fact that the plaintiff is right hand dominant;

e. The opinion offered by Dr. West in his examination in chief that his accident related injuries do affect his ability to work and his employability.

[43] Counsel for the defendant submits that there simply is not an evidentiary foundation for the question to be presented to the jury. She argued that purely speculative claims will not rise to the requisite evidentiary level to support a claim nor will a vague possibility that damages may have been suffered by the plaintiff as a result of the accident[^5]. In that respect, she argued:

a. The Plaintiff was not asked how much he made per year from the time of the accident to the date of trial.

b. The plaintiff has not provided any vocational evidence of his limitations of employability after the accident and compared that condition to what it was prior to the accident. A vocational report would have identified his residual earning capacity by identifying areas of work he could do and his ability to do it. The income potentially associated with such alternative jobs could have been estimated and presented to the jury.

c. There was no evidence led at trial about the plaintiff's employment prospects. He did not provide evidence of his efforts to obtain employment.

d. The plaintiff did not adduce evidence from any of his former co-workers or employers with respect to his work, any limitations he demonstrated in doing his job either before or after the accident, his employment trajectory for the future with that particular firm, and the reasons for termination or leaving.

e. Minimal medical evidence was led that there was a significant difference in the functional capacity of the plaintiff before and after the accident which was due to the injuries allegedly suffered in this accident.

f. In the documents presented with respect to the plaintiff's employment at Challenger, there is nothing in the documents indicating he was having trouble with his right arm. The Challenger work records speak to a much larger problem, namely an inability to properly read and react to traffic conditions and to read road signs appropriately.

g. The employment file from Sharpe Bus Lines was not produced. The Record of Employment entered as exhibit 27 indicates on page one that the reason for ending the employment was "illness or injury." The author of that document, Rosanne Malecki, had her office phone number listed right on the fact of the document.

h. The work records from Schneider Trucking were not produced and an employee from that firm was not called. He only worked there for a short period but no evidence for the job ending was provided by his former employer. The court also did not learn whether he was paid hourly, weekly, by trip or in some other manner. Such information is important for the jury to determine if there is a loss of earning capacity. The record of employment was not produced. Counsel for the defendant stated that they just learned that he had been employed at Schneiders shortly before the trial which is clearly contrary to the ongoing obligations of the parties to disclose information and update information given on examinations for discovery.

i. The income statements from Uber just shows gross income. They do not allow the jury to see what the net income actually is after expenses are deducted and before taxes are paid.

Conclusion:

[44] I find that in the case at bar, there is sufficient evidence of diminished earning capacity or evidence of loss of competitive advantage to put the question to the jury. Dr. West did testify that in his view the plaintiff's ability to work and his employability will be affected by the injuries sustained by the plaintiff in the motor vehicle accident. The jury will be able to look at the earnings of the plaintiff pre and post accident.

[45] The jury will be reminded of the deficiencies in the evidence presented by the plaintiff, including the lack of a vocational assessment report and income/economic calculations to assist them with such things as establishing a present value of any lump sum and the appropriate contingencies to be considered. They will be reminded of the likelihood that a shoulder replacement will be necessary regardless of the accident and to account for the effect of the shoulder replacement on the plaintiff's reasonably expected work life and capacity to work.

[46] Counsel for the defendant are not caught by surprise by such a claim. Dr. West's report which was served according to the Rules of Practice, articulated the basis upon which such a claim could be founded. Dr. Marks will be called as a defence expert to counter the opinion of Dr. West.

[47] In the circumstances, a question on the loss of earning capacity will be given to the jury.

Future Loss of Income:

[48] There is simply no economic or medical evidence to found this claim. A vocational expert has not been called to testify with respect to alternative professions open to him with his limitations due to the accident. A calculation of how this claim is quantified has not been presented through the plaintiff's evidence nor that of an accountant or an economist. The defence has not had a chance to counter such evidence or to retain experts to review and comment on such a claim.

[49] The plaintiff simply has not established the evidentiary basis for this claim to be put to the jury. Therefore, the question of whether the plaintiff has suffered a future loss of income will not be put to the jury.

Turnbull, J.

Released: December 11, 2019

COURT FILE NO.: 681-17 DATE: 2019-12-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: CARLOS LOYE, Plaintiff

AND

GEORGE WILLIAM BOWERS, Litigation Administrator for the Estate of Laurie Bowers, deceased, Defendant

REASONS WITH RESPECT TO JURY QUESTIONS

J.R. Turnbull J

Released: December 11, 2019

[^1]: McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto in Canada, 2019 ONCA 213 at para. 50; (M)B v. 2014052 Ontario Ltd., 2012 ONCA 135, 109 OR (3d) 351 at 51. [^2]: Exhibit 40. [^3]: Evidence of Dr. West, an orthopedic surgeon hired by the plaintiff to offer an expert opinion under Rule 53. [^4]: See exhibits 7, 8, and 9. [^5]: B.(M) v. 2014052 Ontario Ltd., 2010 ONCA 135 at para 65.