Court File and Parties

COURT FILE NO.: 16-67152 DATE: 20200218 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Catherine McNamee and John McNamee, Plaintiffs AND: Pam Oickle, Defendant

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Colleen Burns/Éliane Lachaîne, for Plaintiffs Tom Ozere/Erin Durant, for the Defendant

HEARD: February 18, 2020

Endorsement

[1] This is my ruling with respect to the questions to be put to the jury. For the most part, counsel have come to an agreement with respect to a substantial number of the questions. I was asked to rule on whether to allow questions be posed to jury with respect to Catherine McNamee’s claim for damages:

• for future treatments costs for physiotherapy
• and future costs of medication

[2] I was also asked to rule that there was no reasonable evidence that would allow the following questions to be posed to the jury with regard to John McNamee's claim for damages:

• For future treatment costs for physiotherapy;
• future costs of medication;
• future treatment costs for massage therapy;
• past income loss, loss of economic opportunity and or loss of competitive advantage;
• and future income loss, loss of economic opportunity and or loss of competitive advantage.

[3] The defendant also ask that I rule that the jury not be asked any questions regarding past accident benefits paid and that the proper question is with regard to global damages claimed for past medical services received.

[4] At the outset I ruled that the proper question to the jury with respect to past medical services received is that the jury is to assess these damages with respect to the global amount paid for these services. Any issue deductibility with respect to accident benefits paid and received is a matter for me to decide at a later date.

[5] I also concluded that the amount for future expenses for housekeeping and home maintenance need not really broken down into the specific categories and that the jurors are to come up with a global amount.

Position of the Defendant Moving Party

[6] The defendant says there is no evidence in this trial with respect to John McNamee that he requires future physiotherapy or massage therapy or in what duration and at what cost. Similarly, the defendant says that there's no evidence regarding Cathy McNamee's request for future physiotherapy treatments in terms of duration or frequency of any future treatments. Both plaintiffs have provided an estimate of the medication costs without providing any invoices as to their actual costs or the frequency of incurring and costs. There is also no opinion provided on behalf of either plaintiff as to future medication needs and costs. The defendant submits that for the physiotherapy costs, massage therapy and prescription medication, there is also no mechanism provided by the actual evidence which would permit the jury to calculate the present value associated with awarding any of those future costs.

[7] The defendant submits that there is no evidence presented, beyond speculation, on which a jury acting reasonably can find that Mr McNamee is entitled to any award of income loss claims.

[8] They rely on Mr McNamee's evidence in chief that he remains employed in his preaccident positions as a client services officer. He testified that his annual salary was $66,000 and that his collective agreement will be renewed, and a new salary provided. He did not testify as to his pre-accident income.

[9] The actuary, Maryse Larouche, provided evidence with respect to Mr McNamee's past and future income loss based on only one scenario; that Mr McNamee would have been promoted to supervisor on January 1, 2016. Those were the assumptions given to her by Mr. McNamee’s counsel and she offered no opinion as to the reasonableness of the assumptions. Ms. Larouche gave no opinion as to Mr McNamee's earning capacity as this was beyond her area of expertise. She offered no opinion as to any loss of competitive advantage as a result of Mr. McNamee's injuries.

[10] Doctor Kleinman, called behalf of Mr McNamee, gave evidence that Mr McNamee's work is sedentary and administrative in nature and that he is being accommodated by his employer. He offered no opinion as to reduced earning capacity or early retirement as a result of the accident.

[11] No vocational expert evidence was proffered in Mr McNamee's case. It was Mr McNamee's evidence in chief was that” at one point” he was a site supervisor while his supervisor was away, and this was a temporary position. This would have been sometime around 2008- 2010. He testified that the pay grade for this position was between 13 and 15.

[12] He testified that after the accident he applied for different positions in certain projects within this group. The only specific position which he identified applying to was team lead position. There's no evidence that this is the same position as a supervisor, what the criteria for team lead position was, why Mr. McNamee was not selected for the team lead position, what the salary was for the team lead position, when the application for the team lead position was submitted and when the start date for the position was. There is also no evidence with respect to the other different positions which Mr McNamee applied for. No copies of the applications were provided. Mr McNamee did not lead any evidence from his employer as to his employment performance or other reasons why he is not advanced within the city of Ottawa.

[13] It is Mr McNamee's own evidence that he was prevented from advancing because of his enrollment in the Attendance Management Program and this was the situation before the motor vehicle accident in question.

The Plaintiffs Position

[14] With respect to future treatments generally, the plaintiffs agree with the case law as submitted by the defendant, however they dispute that there is a need for evidence regarding medical necessity, cost, frequency, duration and actual evidence of present value.

[15] With respect to Catherine McNamee's future treatment cost for physiotherapy, they rely on Ms. McNamee's own evidence that she plans to pursue more physiotherapy treatments and then she would like to pursue more aqua fitness.

[16] They also rely on the evidence of Susan Yungbluth who accessed Catherine in December of 2019. They also rely on the recommendations of Dr. Smith and Dr. Ricci who made recommendations that Catherine participate in a multidisciplinary pain program which may include a physio and our massage therapy component.

[17] The Plaintiffs rely on the fact that the jury was instructed by Ms. Larouche with respect to how to use the charts and calculate various present-day value figures with respect to future treatment expenses. They say that the jury would not be pulling a dollar figure out of thin air in making an award for future physiotherapy treatment for Catherine McNamee.

[18] With respect to John McNamee, the plaintiffs rely on the evidence of Dr. Kleinman who recommended physiotherapy treatment during John’s flare ups in pain into the future. They rely on John McNamee's evidence that he received and paid for physiotherapy as late as May 31, 2018 and these were set out in his chart of out of pocket expenses. Again, the plaintiffs rely on Maryse Larouche’s evidence on how to calculate present day value figures.

[19] With respect to the future cost of medication, they rely on the evidence of Catherine McNamee and John McNamee with respect to the various medications that they are currently taking and that they have taken in the past. They rely on their out of pocket expenses charts and rely on the evidence of their treating physicians as to the medications they prescribed from time to time.

[20] John McNamee also testified that he receives massage therapy periodically. He uses it as maintenance. He also gave evidence with respect to the costs depending on how long the session is and where he receives it. Medical reports also indicate a history of John having received massage therapy.

[21] With respect to John McNamee's income loss, this plaintiff relies on the following factors:

• whether the plaintiff has lost the ability to take advantage of job opportunities which might have been open to him if he had not been injured;
• whether the plaintiff is less marketable or attractive as an employee;
• whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labor market;
• whether the plaintiff's career path is frustrated;
• whether some occupations will be closed to the plaintiff; and
• whether the plaintiff will be limited in the range of opportunities that might arise within the pre-accident employment field.

[22] They also submit that even a plaintiff who can earn as much or more after his injuries may be entitled to compensation because some occupations or jobs will be closed to him.

The Law

[23] In M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, the Court of Appeal said this at para. 51:

Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be "reasonable evidence" to allow a question to go to the jury. As Meredith J.A. stated in Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.) [at para. 50]:

Although the jury are the sole judges of fact, they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative[.]

[24] In Mundinger v. Ashton, 2019 ONSC 7161, Justice Charney said this at para. 17:

In my view, the evidence presented to the jury on future health care costs is not sufficient to permit them to do anything but pull a dollar figure out of thin air. There is no costing of the recommended therapies, and the estimate of “hundreds of dollars every month” for medication is simply too imprecise to permit any reasoned calculation. A plaintiff claiming damages for past or future health care costs must provide the jury with some precise calculation, either from an expert witness or through the introduction of relevant invoices from which an accurate calculation can be made. Future health care costs should be supported by expert evidence indicating the anticipated frequency and duration of the recommended health care.

[25] In Day v. Haiderzadeh, 2017 ONSC 7319, Justice Di Tomaso was asked to rule on whether the proposed jury questions dealing with the Plaintiff’s future claims could be put before the jury for their deliberation. With respect to future treatment cost, he said this at para 22-27:

Again, the Plaintiff submits that there is a sufficient evidentiary foundation to leave this question to the jury. There are ongoing chiropractic treatments. A retrospective view of the past pattern of chiropractic, massage treatments and medication speak to what is necessary and reasonable for future medical treatment or care costs. The defence takes the view that there is no evidence regarding what those future care costs would be.

Entitlement to compensation for future care costs requires medical justification. See: Foubert v. Song, 2012 BCSC 143, para. 126.

There is evidence of the Plaintiff continuing with chiropractic treatments for years after the motor vehicle accident. There is an issue as to whether or not those chiropractic treatments were as a result of the December 12, 2012 motor vehicle accident. There is an issue as to the timing of those chiropractic treatments, in light of various steps in this litigation. There is evidence from Dr. Alpert that the Plaintiff will require, in future, various modalities of treatment and further medication.

No vocational or occupational evidence was called by the Plaintiff to say what those future care costs would be. There was no evidence as to the nature and frequency of those treatments and medications in future. There was no costing in respect of those future treatments and no present value of those treatments as well. Where a trial judge did not reduce future care costs to a present value, this was held to be an error. See: Berube v. Vanest, 1995 ONCA 1399 page 7.

There was no evidence by an economic loss expert to present value the future medical treatments, whatever they might be, or future care costs.

Simply put, there was no evidence to provide the jury with the necessary tools to determine what future medical treatments and care costs were reasonable and necessary. There was no evidence as to the frequency of those future treatments, over what period of time and what medication would be required. Also, there was no evidence to quantify and present value those costs.

[26] I adopt the reasoning of Justice Di Tomaso that entitlement to compensation for future care costs requires medical justification. That justification is missing here. What is required is the kind of evidence set out in Donna Matheson’s occupational therapy assessment.

[27] The plaintiffs have attempted to rely on the evidence of Ms. Yungbluth with respect to future physiotherapy needs. This is contrary to my previous ruling where I held:

Accordingly, Ms. Yungbluth can testify with respect to her observations of Ms. McNamee during the time Ms. McNamee attended her hydrotherapy sessions, which was up until May 2018. Ms. Yungbluth may also testify to any observations that she may have made of Ms. McNamee in December 2019.

However, Ms. Yungbluth is not permitted to give opinion evidence with respect to the benefits of any future hydrotherapy sessions for Ms. McNamee, and Ms. Larouche cannot rely on Ms. Yungbluth’s report in updating Ms. Larouche’s previous report.

[28] Accordingly, I find that there is insufficient evidence to put the questions to the jury on the following issues:

Catherine McNamee

• for future treatments costs for physiotherapy
• and future costs of medication.

John McNamee

• future treatment costs for physiotherapy;
• future cost of medication;
• future treatment costs for massage therapy;

[29] With respect to John McNamee’s past and future income loss claims, there is no evidence to support the assumptions set out in Ms. Larouche’s report. There is no evidence of the timing of any applications for other positions; such as team leader. There's no evidence of the applicable pay grade. There is no evidence of the requirements of these other positions and there's no evidence provided by the employer as to why John McNamee might not have been successful. More damaging is John McNamee's own evidence that he was not able to be promoted due to his enrollment in the Management Absence Program and his enrollment in that program predated the motor vehicle accident.

[30] More significantly, but for his absences for the unrelated knee surgeries, his workplace absences have declined since the motor vehicle accident and he has even received commendations for his workplace recommendations. Since 2007, his employer has, and continues to accommodate him for medical reasons. He agreed that his employer is “flat-lining” the organization and that fewer promotions are available.

[31] I rely on Johnston v Walker, 2017 ONSC 3370 where Justice Charney said at paras. 9 and 10:

In this case there was no evidence adduced with respect to the plaintiff’s earning capacity either before the accident or after the accident. The jury has no evidence with respect to the plaintiff’s current annual income or her annual income in any year. Without some evidence of the plaintiff’s earning capacity either before the accident or after the accident I do not see how a jury could be given instructions on how to calculate the loss of earning capacity. “Loss” assumes a starting point from which something is subtracted. As the Divisional Court stated in Ayub v. Sun, at para. 62: “it would be problematic to require a jury to try and calculate the income loss without evidence before them of income or expectation of income.”

In this case, based on the evidence adduced at trial, putting the question of loss of earning capacity to the jury would be to invite them to speculate and pull a dollar figure out of thin air. In my view the following statement from the Ontario Court of Appeal in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 (at para. 65) regarding the ability of a trial judge to quantify damages applies with equal force to a jury:

[I]t 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.

In my view there is not sufficient evidence on which a properly instructed jury, acting judicially in accordance with the judge’s instructions on the law, could reasonably calculate or quantify the plaintiff’s loss of earning capacity. Accordingly, the question regarding loss of earning capacity will not be put to the jury.

[32] I accordingly decline to put any question of past income loss or future loss of earning capacity for John McNamee to the jury.

Mr. Justice Robert N. Beaudoin Released: February 18, 2020