Court File and Parties

COURT FILE NO.: 3411/14 DATE: 20210219 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHANDRABALA SOLANKI and SANJAY SOLANKI, Plaintiffs AND: BETH ANNE REILLY, Defendant

BEFORE: Justice K. Tranquilli

COUNSEL: J. Mays and D. Wozniak, for the Plaintiffs K. Dickson and C. Myers, for the Defendant

HEARD: February 19, 2021

Endorsement

[1] This mid-trial ruling addresses whether the plaintiffs may pursue claims for Chandrabala Solanki’s housekeeping and attendant care losses as a result of injuries allegedly sustained in a motor vehicle accident of December 25, 2012. Her son Sanjay Solanki also claims damages for personal injuries from this accident.

[2] The non-jury trial commenced February 3, 2021. The parties anticipate they will be ready to make closing submissions on February 22, 2021.

[3] The issue of damages for housekeeping and attendant care first arose on February 11, 2021, during the testimony of a plaintiff participant expert witness, occupational therapist Melissa Knot. The defendant objected to Ms. Knot’s opinion evidence as to the cost of attendant care and recommended housekeeping hours of assistance. The defendant argued that the plaintiff eliminated these past care claims from the action during her examination for discovery in 2015. The defendant would be prejudiced if the plaintiff were permitted to now pursue these claims at trial. The plaintiff confessed surprise at this position and claimed the defendant had due notice of these claims.

[4] I understand that the nature of these past care claims arises from the services that family members gratuitously provided to or on behalf of Ms. Solanki after the 2012 accident and before she suffered an unrelated stroke in 2017.

[5] I identified that the defendant’s objection raised the question of whether the plaintiff had a duty to correct her discovery answer and if so, would be it be just to give leave to admit the impugned evidence. I determined in the circumstances of this non-jury trial that it was reasonable for the court to receive this opinion evidence so as to complete the witness’s testimony. The issue of the admissibility of her opinion evidence on the attendant care and housekeeping losses would be reserved to argument either at closing or by later motion, if necessary. On February 19, 2021, the parties advised the court that a ruling in advance of closing submissions was necessary. The parties argued the motion that day, after the defendant’s final witness was called but before the closing of the defendant’s evidence.

[6] These reasons are provided with some dispatch to allow the parties to prepare for the next and final day of trial and are subject to such further reasons as I may find necessary.

[7] The Fresh as Amended Statement of Claim claims non-pecuniary general damages, pecuniary and special damages for Ms. Solanki. She claims she has been unable to participate in her regular recreational, familial, social and household activities and is unable to carry on her normal tasks of living. She claims a loss of housekeeping and home maintenance capacity and that she will require assistance to complete such tasks in the future. She further claims she has suffered pecuniary damages.

[8] At the outset of examination for discovery on July 10, 2015, previous defence counsel asked: “And counsel, will you confirm for the record that there is no economic component being advanced for this plaintiff?” Plaintiff counsel responded: “That’s correct, there is no, none being advanced.”

[9] The plaintiff submits that she did not, in fact, eliminate her past care claim with this answer. The ordinary meaning of “economic loss” means financial or pecuniary loss and refers to an actual financial loss. The loss of time in the provision of various services such as attendant care does not amount to “economic loss”: Simser v. Aviva Canada Inc., 2015 ONSC 2263 (Div. Ct.) at paras. 39-40. Similarly, a claim in respect of a loss of housekeeping capacity is distinct from a non-pecuniary damages claim. Housekeeping losses can arise from three scenarios that involve non-pecuniary and pecuniary losses: 1. Where the plaintiff leaves work undone (non-pecuniary); 2. Where the plaintiff may continue to undertake housekeeping but with pain and difficulty (non-pecuniary); and 3. Where the plaintiff incurs a pre-trial out-of-pocket loss by hiring replacement housekeeping services: McIntyre v. Docherty, 2009 ONCA 448 at paras. 62-75. The claim is not dependant on whether replacement housekeeping costs are actually incurred but is frequently valued using a replacement cost approach: Popove v. Attisha, 2019 BCSC 1587 at paras. 53-55.

[10] The defendant relies on McIntyre, supra, to note that evidence of a housekeeping loss does not necessarily mean there is a pecuniary loss. Therefore, questions on the plaintiff’s examination for discovery as to her post-accident housekeeping limitations and her need for personal care assistance did not put the defendant on notice of a pecuniary loss in the face of her express acknowledgement that no economic claims were being advanced. If the plaintiff now intends to argue such claims at trial, her answer on discovery was never corrected as required by the Rules of Civil Procedure.

[11] At best, it appears to the court that the authorities cited by the parties demonstrate that the question as to existence of an “economic loss” lacked the necessary precision in clarifying or narrowing the nature and scope of the damages claimed, such that there was no duty on the plaintiff to correct this answer. The defendant has been in possession of Ms. Knott’s report setting out her assessment of attendant care needs (Form 1) and housekeeping assistance recommendations for some time. The defendant was also long aware that the plaintiffs intended to call Ms. Knott as a participant expert. The defendant may have been under the impression that no “economic component” meant there were no housekeeping or attendant care claims. However, the contents of the occupational therapist’s report, the meaning of an “economic loss” and the different bases on which these damages can be claimed and assessed would highlight the need to clarify the issue and the defendant’s understanding.

[12] If this conclusion is incorrect, the court will nevertheless also consider whether it is just to give the plaintiff leave to lead such evidence pursuant to rule 53.08 of the Rules of Civil Procedure. This requires the court to consider whether the defendant had notice of the nature of the plaintiff’s past care claims.

[13] As a threshold matter to this issue, the court must address whether certain evidence filed by the plaintiff as exhibits to an affidavit on this motion are properly before the court. The defendant contested the admissibility of this evidence as being precluded by the Rules. These exhibits fall within three categories: 1. Redacted excerpts of the plaintiff and defendant pre-trial and mediation memoranda; 2. A redacted email report between plaintiff counsel as to pre-trial communications; and 3. A redacted offer to settle. I advised the parties that the court would not review these exhibits unless it was satisfied the evidence was admissible. The parties made general submissions as to the nature of these exhibits but otherwise agreed that if the court determined that any or all of these exhibits could be considered, and that the information therein would be self-explanatory.

[14] The court has not reviewed or considered any evidence or exhibits as to an offer or offers to settle. The Rules are clear that no such communications shall be disclosed to the court until all questions of liability and the relief to be granted, other than costs, have been determined: 49.06(2), (3). The plaintiff did not refer the court to any authorities that support the use of such communications on a motion of this nature.

[15] Rule 50.09 also prohibits the disclosure of any statement made at a pre-trial conference to the trial judge, except as disclosed in the pre-trial conference report or orders made at pre-trial. However, there is authority that supports the plaintiff’s position that the ban on disclosure of evidence related to a pre-trial conference does not apply where such information is used solely to address whether a party was on notice of the other party’s position in issue: Lyons Estate v. Dr. Freeman et al., 2017 ONSC 533, Marshall v. Watson Wyatt, 57 O.R, (3d) 813 (C.A.).

[16] The court is persuaded that these are appropriate circumstances for the consideration of the redacted pre-trial memoranda for the limited purpose of addressing solely whether the defendant had notice of the plaintiff’s past care claims. The proposed evidence does not include any communication with or from a pre-trial conference judge: Lyons Estate, supra at para 17. Pursuant to rule 2.03, it is in the interests of justice that the plaintiff be permitted to file this evidence for the purpose of responding to the defendant’s objection: Tondera v. Vukadinovic, 2015 ONSC 5843 at para. 17.

[17] The parties participated in two pre-trials. The redacted excerpts of the plaintiff’s pre-trial memorandum for April 2017 refers to her submissions in respect of “Housekeeping and Home Maintenance” and “Attendant Care”, along with a description of some of the evidence in support of attendant care. The defendant’s excerpted pre-trial memorandum refers to evidence of the plaintiff’s housekeeping and personal care limitations; however, also repeats the discovery statement that “no economic component” is being advanced for the plaintiff, arguably signifying that there is not a meeting of the minds between the parties on the nature of the claims or the application of the evidence. However, the plaintiff’s subsequent pre-trial memorandum from July 2018 sets out the position that Ms. Solanki’s claim for housekeeping and home maintenance is encompassed within the claim of the other plaintiff, her son Sanjay Solanki. The memorandum also states that Ms. Solanki’s daughter in law provided all the necessary attendant care to the plaintiff. This information would put the defendant on notice of the claims and the evidence relied upon in support of the claims, again highlighting the need to revisit the understanding of there being no “economic component” to this plaintiff’s claim.

[18] Finally, the court is satisfied that there is no prejudice to the defendant. The defendant’s theory throughout trial is that this plaintiff’s impairments and consequent damages are not accident related but are the result of pre-existing conditions and the natural progress and outcome of degenerative condition(s). The occupational therapist was cross-examined in a manner consistent with that theme. The defendant has not yet closed her evidence. Counsel acknowledged that if the plaintiff was given leave to lead evidence on these claims, that some evidence could be read in by the defendant and that accident benefits documents could be filed on consent.

[19] The court did not review or consider the redacted email within the plaintiff law firm about the pre-trial or the mediation memorandum. Given the findings based on the pre-trial conference report, it is unnecessary to consider whether the principles Marshall, supra and Lyons Estate, supra extend to the use of these documents. The nature of the email communication is also tenuous in establishing notice to the defendant. It reportedly relates to hearsay communications from one plaintiff counsel to another plaintiff counsel about discussions with defence counsel at pre-trial. It is not a specific communication between opposing counsel on the issue. The court also accepts the defendant’s submission that the plaintiff offered no authority for how a mediation memorandum could be properly considered by the court.

[20] The plaintiffs are therefore granted leave to lead evidence in support of past care claims related to housekeeping and attendant care claims for Ms. Solanki.

[21] Counsel advised at the conclusion of argument on this motion that it was still anticipated that the parties could conclude the evidence and complete their closing submissions this Monday, February 22, 2021. If either or both parties have reconsidered their positions on the schedule, they are directed to contact the trial co-ordinator by email forthwith.

Justice K. Tranquilli Date: February 19, 2021