COURT FILE NO.: CV-14-511924

DATE: 2021-04-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CAROL ANN TARRINGTON

Plaintiff

– and –

HAVCARE INVESTMENTS INC. and XYZ PROPERTY MANAGEMENT COMPANY INC.

Respondents

COUNSEL:

Kal Stoykov and Tyson Carter, for the Plaintiff

Carolyn Krebs, Self-Represented

HEARD: September 14, 15, 16, 17, 18, 21, 22, 23, 2020; October 5 and 6, 2020

REASONS FOR JUDGMENT

A. RAMSAY J.

[1] This judgment follows a hybrid trial, without a jury, which took place over ten days.

I. BACKGROUND

[2] The plaintiff, Carol Ann Tarrington (“Ms. Tarrington”), a former tenant of one of the units in an apartment complex located at 500 Dawes Road (“the premises”) owned by the defendant, Havcare Investments Inc. (“the defendant”), brings this action for damages against the defendant for breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Occupiers’ Liability Act”) and breach of the Negligence Act, R.S.O. 1990, c. N.1 (“Negligence Act”).

[3] On the evening of September 27, 2012, Ms. Tarrington says that she tripped and fell on a wooden post that had been protruding out of the ground in a grassy area at the back of the building as she went to retrieve a set of keys thrown to her from an individual from the balcony above. The statement of claim alleges that she was in the process of taking out her garbage when the incident occurred, which was not the evidence elicited at trial.

[4] Carolyn Krebs, who also goes by the name “Carolyn Goodman” and “Marian Linton” (“Ms. Krebs”) is the landlord of the premises. Ms. Krebs is also the president, officer and director and principal of the corporate defendant, which is the owner of the premises. She is not named personally but was granted leave by order of Justice Dow on April 15, 2015, which was unopposed, to represent the corporate defendant as a non-lawyer.

[5] The defendant denied, in its statement of defence, that it was the owner and or occupier of the premises or that it was responsible for the care, control and maintenance of the premises. In the midst of the trial, the defendant admitted that it was responsible for the maintenance of the premises but denied any liability. The thrust of the defence was that if Ms. Tarrington fell, she never fell as she said she did, and her fall was possibly caused by her pre-existing medical conditions or weight as the area where she fell was always well maintained had had never had any erection or fence since the defendant purchased the property in 1995.

[6] Ms. Tarrington, unemployed at the time of the incident, sustained a serious fracture of her upper arm which required two surgeries. She is seeking compensation for pain and suffering, future treatment costs, loss of housekeeping and handyman capacity and miscellaneous out-of-pocket expenses.

II. EVIDENCE OF THE PLAINTIFF’S WINTESSES

i. Carol Ann Tarrington -Plaintiff

[7] Ms. Tarrington, born January 15, 1951, 61 at the time of her fall, is now 70 years old. She has a grade five education and is a widow with four siblings and three children. She has not worked since she was a teenager. She had previously been on ODSP before receiving CPP.

[8] Her son Mark had an apartment at the premises, and she had been living with him and his girlfriend at that apartment for over a year. She moved out shortly after the first surgery on her arm after the fall.

[9] She had an argument with her son Mark in 2018 and has not spoken to him since.

[10] On the exterior, the building did not look too bad but there were issues relating to the interior of the building.

[11] The fall occurred on September 27, 2012.

Pre-existing History

[12] She had a number of health issues before the incident. She had high blood pressure, was diabetic, her “thyroid was out of whack” and she had COPD (chronic obstructive pulmonary disease). Before the fall, she was diagnosed with depression, had been suicidal in the past, and had been treated with medication. The fall made her depression worse. On cross examination, she testified that she had to take two needles a day to control her diabetes, had stomach problems, reflux disease, had been diagnosed with borderline personality disorder and chronic hepatitis C, dyslipidemia, had had lower back surgery and had been taking ten medications at the time of her discovery in 2018. She stated that that her weight and her medical conditions did not affect her ability to walk. She admitted on cross examination that at the time of her examination for discovery she was on ten different medications, but she was not asked what medications she was taking at the time of the fall on cross examination.

[13] She has had a number of surgeries including her gall gallbladder, removal of her appendix and on her wrist, but her healing “was not too bad” but she stated she was a lot younger when she underwent those surgeries.

[14] On cross examination she testified, in response to a question about any future surgery, that she may need back surgery. There was no further probing on cross examination or re-examination as to why she may require this surgery and when.

The Incident

[15] The incident occurred between 7:00 p.m. to 8:00 p.m. in the evening at the apartment. It was dark. at 500 Dawes Road, at the apartment complex. She had been living at this address with her son, Mark and his girlfriend, Sarah, for about a year.

[16] On the evening of the incident, she went with her son’s girlfriend, Sarah, to take the dog out for a walk. She was wearing runners and a pair of jeans. The dog gave chase after either a racoon or cat and Sarah went after the dog. Sarah had taken off with her keys and was taking too long to return.

[17] She testified that the incident occurred at the back of the building where the lawn was. On cross examination it was established that it was the north west side of the building. She called up to one of her friend’s son on the third-floor balcony to throw her a set of keys so she could get back into the building. The keys landed on the ground close to the side of the building and she heard where they landed. On cross examination she estimated it was about 3 ½ inches away from the building. The lighting was very poor.

[18] She was going to retrieve it when she tripped on a piece of wood, protruding upward from the ground. The wood was approximately 4 inches sticking up out of the ground. When she fell, she hit the side of the building. The area where she fell was used by others as a short cut.

[19] Mr. Tarrington testified that the grassy area where she fell was dirty with garbage strewn all over. She stated that people would throw their garbage out of their window. Her evidence is that it was never raked and cleaned, and the papers would not be picked up. She estimated that the grass was about five or six inches. On cross examination, she was shown a picture of the north side of the building[^1] taken by her lawyers, not previously shown to her. She testified that was not the spot where she fell, as she fell further up past the tree on the grass.

The immediate aftermath of the fall

[20] She almost passed out from the pain. She could not get up because of the pain in her arm. After some unknown time, her son Mark came down and found her on the ground crying in pain. There was dog poop where she fell and she also had soiled herself. They went back upstairs, and Sarah helped her to take a shower. An ambulance was called. She was transported to the East York General Hospital by ambulance. She was told that she had broken her arm, and because of the location of the fracture, it could not be casted. Her arm was placed in a sling and she was discharged early the next morning.

[21] The morning after her fall, she went to ask the new super for a video, which she believed captured the incident, and advised the super that she would sue Ms. Linton, and was denied the video. She stated that her son Mark went to take a picture of where the fell and the post was cut down by the time he got there, and all that remained was sawdust. On cross examination, she stated that Mark took photos the very next morning.

[22] The defendant pointed out, during cross examination, that Dr. Robin Richards mentioned obesity and alcoholism in his report. In response, Ms. Tarrington stated she was not aware that he wrote that information in his report and had no knowledge where he obtained the information. She was asked questions about her weight but not about alcohol use that night or any other time.

Medical Treatment

[23] She was taken by ambulance to the Toronto East General Hospital and assessed. Her arm was placed in a sling, she was referred to the fracture clinic, and discharged. She testified that she went to the fracture clinic on September 29, was told she had a fracture and told how long it would take to heal. She had weekly x-rays, but the fracture was not healing. She had her first surgery in June 2013 at the Toronto East General Hospital.

[24] She was told that she had broken her arm but because of the location of the fracture she was given a sling.

[25] She went every week for x-rays, but the fracture was not healing. She had her first surgery at the Toronto East General Hospital. The first surgery “did not do what it was supposed to do” and she had to have a second surgery in July 2013 at the Toronto Western Hospital. She has scars on the front and back of her arms from the top of her shoulder down to her elbow from the surgeries.

[26] She has pain every day in the right arm which hurts with activity and affects her ability to sleep properly. Her depression got worse after the fall. She was diagnosed with depression and was suicidal and it got worse after the fall, that is why her family has been keeping an eye on her. On cross examination, she admitted that she does not have any friends. She likes where she is living now and is happy for the company. She also stated that her life was pretty much the same now as before the fall.

[27] She consumes 2 1/2 bottles of Advil a month or Tylenol. She had a bad reaction to prescribed medication before.

Scars

[28] She has no other injuries aside from her right arm. As a result of the two surgeries, she has two scars on the front and back of her arm extending from the top of her shoulder to almost her shoulder.

Housekeeping Services

[29] After the fall, she required help with her personal care, housekeeping, changing her bandages and doing her most intimate toiletry for her. She moved in with her sister Nadine shortly after the fall. It was Nadine who performed these services. She stated: "I was more like an infant". She could only use her left arm. While Ms. Tarrington was not asked in chief or in cross which side was dominant, the available evidence indicate that she is right hand dominant. She stayed with Nadine for eight months before moving next door into a basement apartment close to her sister. She now lives with her daughter Maryann and her boyfriend, Scott. She finds doing certain housekeeping activities cause pain, such as sweeping, and some activities she can no longer do, such as mopping. She is able to do some housework now, but not as she used to. She took over the housekeeping responsibility from her daughter because she and her boyfriend both work, but her daughter will do the housekeeping that she is unable to do.

Activities of Daily Living

[30] She typically spends most of the day in her room. On cross examination she testified that she normally eats her breakfast and then goes back to her room. On cross examination, the question was put to her that before the incident she stayed in her room and after the incident she stayed in her room, and she admitted that was the case. There was no clarification as to whether this was the case even when she lived by herself. She testified that she usually had her own place and had lived with Mark on a previous occasion for two months. On cross examination, her evidence was that Mark had all kinds of people there and she did not want to be around them. She stated that even with her daughter she does the same and indicated that she did not associate with anybody

[31] The defendant raised the issue of Ms. Tarrington's left wrist which was investigated on August 31, 2012. Ms. Tarrington was not asked either in chief or in cross about any diagnoses in her left wrist, pain or functioning of her left wrist. She herself had mentioned during her cross examination that she had broken her wrist many years before and had also mentioned that she had had surgery “on her wrist”.

[32] She has not had any physiotherapy because she could not afford it. She would attend physiotherapy if she had the financial means.

[33] She spends about $15 for a bottle of Advil which last for about three weeks. She has been taking Advil since the fall.

[34] I found Ms. Tarrington to be a truthful and credible witness. She volunteered information that was not helpful to her case, made admissions not helpful to her, and some of her testimony is corroborated by other witnesses, even the defendant’s own witnesses.

ii. Mark Livingston - Son

[35] Mr. Livingston is Mr. Tarrington’s son 52-year-old son. They have not spoken since a falling out in 2018.

[36] He worked for Ms. Linton (Ms. Krebs) for about five or six months as a cleaner. He moved out about two months after his mother’s accident. The overall condition of the building was run down inside and on the outside. The grass was never cut for a month or month and a half. In the back where the garbage bins were, the lighting was poor.

[37] He testified that his girlfriend and mother took the puppy out and they were taking a long time to get back. It was dark outside when he went to look for his mother. He was concerned because there had been some shootings at the building about a month before. He found his mother lying on the ground, clutching her arm and screaming. He used the light on his phone to see what caused her to fall. He looked around and saw a treated 4 x 4 sticking out of the ground about three or four inches. The grass was covering it. She fell where the 4 x4 was located.

[38] Mr. Livingston testified that the dog had taken off on his girlfriend. On cross examination he testified that he found his mother by the back door, by Ms. Krebs office where the garbage cans and garbage bins were. She was in the vicinity of the fenced in area, but he could not recall how close she had been to the fenced in area. He was also shown exhibit 6 on cross examination depicting the back of the building on the north side. He identified Ms. Krebs’ office shown in the picture but testified that where his mother fell was not captured by the picture as it was further back where the grassy area was. He conceded that she fell on the north side of the building but testified that she fell further west of the area captured on the picture.

[39] He could not remember if they went upstairs or were still downstairs when the ambulance was called. His mother went to the hospital within 45 minutes of the fall. He went down the next morning to take some pictures but only saw sawdust. On cross examination he stated that he took photographs to show her where his mother fell. He did not show her because she wanted nothing to do with it. During his testimony, Mr. Livingston lobbied at Ms. Krebs, in response to a question: “But, you had Jack out there already cutting it down”. Ms. Krebs spent some time asking for a description of “Jack”, whether it was the same “Jack” that had been in a fire, everything but the question which would have assisted the court: that is, whether Mr. Livingston observed “Jack” removing the alleged post.

[40] Mr. Livingston's credibility was not seriously challenged on cross examination and was in fact bolstered by Ms. Krebs herself who cross examined him on the fall out with his mother and the last time he spoke with her. Both he and his mother testified that they had not spoken since 2018. Mr. Livingston had not been on the plaintiff’s witness list. His evidence corroborates his mother’s evidence on the material facts. She fell at the northwest corner of the building, not captured by the photo, on the grass. There was a wooden obstruction or post protruding from the grass; it was dark; the lighting was poor. He was not nailed down either in chief or on cross examination on the length of the grass at the time of the incident, nor whether he observed the post being removed by “Jack”.

iii. Nadine Ludlow - sister

[41] Ms. Ludlow is the 58-year-old sister of Ms. Tarrington. Before her sister’s fall, they would go shopping, play Bingo or go to a show. She would drive over every day after supper to see her sister. She testified that her sister was quite active and kept a good house before. She was a happy person and things did not bother her.

[42] Her sister had lived with her previously for three months when she first moved to Toronto. Her sister did her housework for her and made her supper when she was working. After the fall, her sister moved in with her for a second time and stayed for eight months. She helped her sister with her personal care needs, her medication, getting to her medical appointments on a weekly basis to take x-rays, prepared her meal, made her bed, and did her laundry. She testified that her sister became depressed and did not want to do anything.

[43] On cross examination, Ms. Ludlow testified that she now sees her sister one day a week and takes her to Bingo, whether she enjoys it or not. She testified that her sister can do her laundry with one hand and can use her one arm to straighten the blanket on her bed.

[44] Ms. Ludlow had some problem with remembering dates, but for the most part I found her to be credible. She was not probed on her evidence that Ms. Tarrington was a happy person before the incident and things did not bother her. On the whole, taking her evidence together with that of Ms. Tarrington’s daughter and Ms. Tarrington herself on her current state, it can be inferred that it is a matter of perspective, which did not, in my view, undermine her credibility to any degree.

iv. Maryann Tarrington -daughter

[45] Maryann, aged 51, is the daughter of Ms. Tarrington. Maryann testified that her mother moved in with her in September 2014 because it was easier to take care of her.

[46] Before the incident, her mother had COPD and could not take long walks but was physically fine. Emotionally, she was fine before the incident. She had visited her mother at the premises, and it was a typical low rental building which needed to be maintained.

[47] Her mother moved in with her about a year and a half after the accident because it was inconvenient to get her and to pick up her groceries. She was also isolated up there. Presently, her mother does some lighter housework and she does the heavier chores and things that she is unable to do. She and her boyfriend do the "heavier stuff”. Her right arm hurts whenever she uses it all the time and she has not trained her left arm to compensate for her right arm. She does the grocery shopping, all the errands, cooking and help her to get things off the upper shelf. She also monitors her diet.

[48] Her mother has not been depressed in a while. Prior to her mother moving in with her, her emotional state was good for the most part. There were some siblings who gave her grief but aside from that Ms. Tarrington’s daughter did not describe any other emotional issues. Her mother has lost quite a bit of weight and her diabetes is better.

[49] I found Ms. Tarrington to be an honest and truthful witness. She was not cross examined by the defendant.

v. Dr. Robin Richards – Expert

[50] Dr. Robin Richards, orthopedic surgeon, was qualified as an expert to provide opinion evidence on upper extremity trauma. He received his fellowship from the Royal College in 1982 and has been the Chief of Surgeon of Sunnybrook Hospital. His orthopedic practice focuses on upper extremity trauma and reconstruction. Sunnybrook is a level 1 trauma centre where the most seriously injured patients are taken preferentially by ground and air ambulance service.

[51] Dr. Richards examined Ms. Tarrington on June 27, 2019 at the request of her lawyer. In his opinion, Ms. Tarrington sustained a displaced spiral fracture of the right humeral shaft (the arm bone), which was broken in two pieces (comminuted). In cross examination, he testified that she may in fact have sustained associated injuries, and possibly a rotator cuff injury, not yet investigated and diagnosed.

[52] He testified that there were dozens of x-rays taken until she had the first operation on June 17, 2013, which was performed by Dr. Weiler who put in a plate and screw. It did not hold and Dr. Weiler sent her to see Dr. Veillette, who performed the second surgery putting in a much longer and heavier plate on the bone, and the fracture healed thereafter. She developed two complications from her injury, a nonunion (her fracture did not heal) and radial palsy (with resultant pain and weakness of the arm). The weakness related to the radial palsy improved. Her fracture healed but she is left with pain and functional limitation in her right dominant arm.

[53] When he examined her, he observed a 22 cm scar on the right side of her right arm and a 20 cm scar along the back of the arm. She had restriction in elevation, abduction, internal and external and rotation. She had a significant amount of reduction of elbow motion on the right side, a significant reduction of her grip strength and reduced pinch strength. On cross examination, he testified that in his experience attempts to retrain a person to change their dominant hand was not often successful.

[54] Dr. Richards testified that Ms. Tarrington pre-existing medical conditions did not have any impact on her right arm. On cross examination Dr. Richards testified that there is a possibility that Ms. Tarrington’s pre-existing Diabetes and COPD may have negatively influenced her healing process, the former would have affected her healing, and the latter, if she was coughing a lot, could contribute to nonunion.

[55] Dr. Richards did not agree with the defendant’s suggestion that removal of the plates and screws would improve her pain and did not believe her pain was caused by the hardware in her arm. He stated that most orthopedic surgeons would not remove the plates and screws due to the high risk of injuring the radial nerve, risk of fracture through the radial screw holes, and risk of infection. He testified that he would not recommend removal as “the chances of helping her was very very low” and there was a good chance it would make her worse. He stated that the source of her pain was the sequalae of her injury: the broken bone with disruption of nerve endings, bleeding into the surrounding tissues, scarring as a result of her initial injury and additional scarring from the two surgeries. It was his opinion that it was not uncommon for someone with such an injury to have chronic pain.

[56] Dr. Richards testified that Ms. Tarrington has serious and permanent impairment which affects her normal activities in her dominant upper extremity. She has stiffness, weakness, pain and chronic sleep disturbance and does not have the same functionality as she did before. She cannot perform her household chores and recreational activities as she did previously. He testified that the more she does, the more she has pain. He was of the view that there is a possibility that Ms. Tarrington will require further surgical treatment. Her arm is stiff with the plate, she may develop an infection, and she is at risk of developing arthritis.

[57] On cross examination, he stated that physiotherapy would not make a difference to her disability or limitations but may temporarily relieve her symptoms. He stated physiotherapy may have helped to a minor extent initially after the second surgery but would not have changed the ultimate outcome. He testified that Ms. Tarrington has chronic musculoskeletal pain and as a result requires analgesics medication for her pain, and may benefit from intermittent courses of physiotherapy, massage and acupuncture therapy to alleviate her pain, but stated that treatment would not make any change in her functionality.

[58] I found Dr. Richards’ testimony to be impartial and of assistance to the court. He did not appear to be an advocate on behalf of either side. A great deal of latitude was given to Ms. Krebs in her cross examination even where foundational facts were not in evidence. When asked in cross examination if it is possible that all her medical conditions and previous surgeries could have caused her fall, he responded that it was possible.

[59] There was a great deal of latitude given to Ms. Krebs during her cross examination of Dr. Richards. However, little if any weight can be given to the reference in hospital records to “ETOH” and a history of alcohol abuse since Ms. Tarrington was not asked about alcohol consumption, if any, that night, or whether she had not taken her insulin, nor was any clarification sought on what she meant when she testified there was dog poop and she also her evidence when she said she “fell in dog poop and also ended up soiling herself. As Ms. Tarrington did testify as to her weight, Dr. Richards’ opinion that her weight would not have caused her fall but would likely have contributed to her breaking her arm, can be given some weight. Dr. Robert Richards’ opinion, based on his experience and knowledge of the Worker's Compensation Board program to attempt to train people to use their nondominant arm, may be accorded only a little weight as this was outside his area of expertise.

vi. Mark McEwen - OHIP

[60] Mr. McEwen is a Recovery Officer at the Ministry of Health and Long-Term Care. He was called to testify as the defendant did not agree on the content of the letter dated September 19, 2018 and payment summary from Mr. McEwen to the plaintiff’s lawyer setting out the amount of OHIP’s claim. Mr. McEwen testified that as of September 19, 2018, OHIP’s subrogated claim totaled $26,626.36. His evidence was not challenged by the defendant in cross examination.

vii. Jacquilyn Nicomedez- University Health Network

[61] Ms. Nicomedez is the information specialist for the health department at the University Health Network (“UHN”). The plaintiff was obliged to call her to prove that the records produced by UHN could be admissible as business records at common law (Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 (S.C.C.)) as no notice was given in accordance with section 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23, and the defendant refused to consent to have the records admitted into evidence.

viii. Adel Tariq – Toronto Eastern General Hospital

[62] Mr. Tariq is the Canadian Health Information Manager at the Toronto Eastern General Hospital. He was called as a witness for the same purpose and the same reason as was Ms. Nicomedez.

THE DEFENDANT’WITNESSES

[63] Ms. Krebs is the owner of Havcare which owns the premises and has owned the building since 1995. She testified that she has been involved in all aspect of the rental of the building, from renting to repairs. She testified about the good maintenance of the building going back to 1995.

[64] Attempts to focus her testimony was unsuccessful. She testified in some detail about renting the apartments, maintaining the interior of the building, daily cleaning of the interior of the building by employees, and in some minute detail about one particular employee, a cleaner, Roy Marks, who had duties inside and outside of the building. She insisted that she not only directed this employee but would be able see with her own eyes what he was doing because there were 80 cameras. She saw him, “with (her) own eyes” sweeping, emptying garbage bags, and cleaning at the north side of the building.

[65] She herself has probably walked in that area hundreds of times. She testified that the grass was always well maintained and always cut short in the summer weather. She had a contractor who had at least 2 men in his crew who came every week. She was surprised that none of her other witnesses could remember him as his name was “Bob”, and he would drive a giant tractor. It was “never a problem for the giant tractor, it was always smooth going”. The ground “was always level”. The “grass was always trim”. There was never anything protruding, never any stick, fence, or free-standing structure, “just a piece of field that was strictly decorative”. Bob cut the grass, trimmed the bushes, and had a weed Wacker for poles, and one of the crew had a leaf blower and when he left it was “exceptionally” well maintained.

[66] She testified that she herself had “always walked closer to the building”, or maybe “primarily” closer to the building, or maybe it was 50% of the time. There was not one inch of the northwest piece of the property that her feet did not step on.

[67] She had sheets in the office, which were like maintenance schedules, explaining what everyone did. Her head supers at the time were Michelle and Dan, and she had an assistant super, Charles. She had a full-time cleaner cleaning the apartments and the common areas, and a full time cleaner, Roy Marks, who cleaned inside and outside, a part time cleaner, and would hire additional part time cleaners to clean the apartments. The plaintiff’s son, Mark Livingston, was a part time cleaner for about six months. She would sometimes direct that everyone should be outside cleaning.

[68] When she brought the property in 1995, all the exits had exterior lights, and there were additional flood lights here and there, on the second and a halfway up. A few years afterwards, they rewired the wires on the Poles, which were not working, and “they were all working perfectly”. The only comments she received was that the lights were too bright. She testified that “Whatever the lighting was, it was up to code”. The lights were on a timer and would go on as soon as it started to get dark, which was adjusted automatically. On occasions they would have to call the electrician as the lights would stay on for days, and after tweaking by the electrician, it would work. There is a light attached to the building near the top of the second floor in the area where Ms. Tarrington said she fell, and a flood light, the only one in that whole stretch, which would have been lighting the area. She herself would drive down to the building back then and the lights would be clearly on.

[69] She placed cameras on the inside and outside of the building. On the northside, there is a camera on the exit which is far away from the grassy area. There was no camera in the area identified by the plaintiff (where she fell).

[70] On cross examination she was asked pointed questions about lighting and other deficiencies noted in the two building audit reports dated December 8, 2008[^2] and January 14, 2013[^3] of the premises, admitted into evidence following a voir dire as public records and available to the public on the City of Toronto website. She either evaded questions, or when pressed claimed she knew “exactly” what the issue was and provided explanations which often times made no sense or were not responsive to the question.

[71] She testified that “Jack” was involved in a work-related accident and stopped working in December 2011. She conceded that he is still living in the building. Neither side made it clear during the trial what role Jack played in the incident given my comments on Mr. Livingston’s testimony.

[72] On cross examination, she testified that she did not believe it was relevant to provide records because she knew Ms. Tarrington did not fall as she said she did. She admitted that she was not on the premises the evening that Ms. Tarrington fell. The only description provided for the contractor, who had worked for her for fifteen years, was that his name was “Bob”. She had not, even at the time of the trial, provided the name of the contracting company. She insisted, on cross examination, that she “just knew” the grass would have been the typically low grass because it was a Thursday and the grass cutter came on a Thursday.

[73] She testified on cross examination that she also knows the lighting had been maintained and there had been a big supply of light bulbs.

[74] She admitted there was no signing prohibiting people walking on, what she called, the “big grassy field” but claimed there would be no need to walk on the field because there was a path nearby. By the same token, she asked her own witnesses how many times they had walked in that area and, by her own evidence, she too had done so countless times.

[75] She admitted on cross examination that she had “in the book” pages of all the contractors but did not produce them. In the midst of her cross examination she testified that her office was in her house and there had been a flood “before this all started” in 2014.

[76] Ms. Krebs credibility was repeatedly undermined, both during her testimony, and in statements made to the court that were later proved inaccurate:

i. She maintained that she never received the plaintiff’s expert report, and only after being confronted with proof that she had, did she concede the fact. However, while cross examining the expert, she raised the issue again and only when reminded that she had received the report did she concede that indeed she had received it.

ii. She indicated that she had not received the plaintiff’s affidavit of productions, and her own transcript from her examination for discovery indicated that she had, or that it was made available to her in 2018. Affidavits were also required to address Ms. Krebs’ denial that she had received the plaintiff’s documents.

iii. Although not relevant for the purposes of this trial, Ms. Krebs denied at her examination for discovery that there was insurance on the building. She only acknowledged having had insurance at the time of the incident when one of her own witnesses disclosed the involvement of her insurance company in fire that occurred in an elevator on the premises (apparently cause of “Jack’s” serious workplace accident on the premises). When confronted by plaintiff’s counsel about the contradiction of her evidence by the plaintiff’s counsel, she testified that she did not deal with the insurance issue (this despite her earlier evidence in chief that she was involved in all aspects of the rental and being the owner of Havcare).

iv. At the outset of trial, Ms. Krebs indicated that she had no documents only the statement of defence. Indeed, she was ordered in 2018 by a Master to produce her affidavit of documents and productions. During the trial however (and before her cross examination) Ms. Krebs arrived with binders of documents going back years, which prompted an adjournment to permit the plaintiff to review them for relevance. As the questions surrounding her lack of records unfolded during her cross examination, Ms. Krebs then stated that her office was in her house and she had had a flood before 2014, before this all started, which destroyed her documents. There was no explanation as to why the binders of records survived the flooding intact.

v. Ms. Krebs portrayal of the premises as well maintained is undermined by the evidence of her own witnesses who spoke of the repeated inspections by the City, and the two City audits which outline numerous deficiencies, including lighting deficiencies.

[77] Ms. Krebs also had the benefit of hearing all the evidence, as was her right. However, it is not known whether this played a role in her attempts to seek to bring forward additional information, at the last minute, in an attempt to bolster her case. During one of the lunch breaks, she went to the premises to take photos; she showed up with “binders” of documents in the middle of the trial; and, she expanded the number of witnesses to be called.

Based on the foregoing, I did not find Ms. Krebs to be a truthful and credible witness.

Evidence of Charles Musanhi

[78] Mr. Musanhi has been the assistant super of the premises since 2011, a position he held at the trial. He replaced a gentleman named “Jack” due to his injuries. Mr. Musanhi testified that there are balconies on the northwest side of the building but no balconies on the back.

[79] He was not told that someone fell.

[80] He walks over the area every day and does cleaning in the morning. He testified that he picks up garbage and trash every day around the building. He has not seen any posts or sticks sticking out of the ground. A contractor comes every Thursday to cut the grass with a crew and a tractor. He goes around with a tractor and comes every weekday. He testified that the grass was always short.

[81] There are two cameras, one in the office and one in the garbage area. The camera in the office is able to see the trucks and garbage area. The cameras would not be able to capture the northwest corner of the building.

[82] He claimed that he, the super and two others would clean every morning, including holidays. He worked inside more during the week but on the weekend, he would go around outside. He works seven days a week. His duties including plumbing, carpentry, and plastering, drywall, electrical. For big jobs he would call a contractor.

[83] He walks around on Saturdays close to the garbage area. He testified he has picks up garbage at 8:00 a.m. and in the afternoon the cleaners and the supers would go out again. (This evidence was contradicted by Ms. Scott, the head super, who testified that there was no afternoon cleaning, and denied that the supers were involved in cleaning). On the weekend, he does outside.

[84] He testified that the condition of the building was good as was the outside of the building. He has not seen anything erected or fence since he has been there. There is “wooded”, not really a fence, around the garbage area. City Standards inspectors would come once or twice a week or once a month. If the City did a posting before they came, if there are maintenance issues, they would highlight it. He admitted that the City came to the property frequently.

[85] On cross examination, he admitted that as part of its January 2013 audit the City found a deficiency in the lighting at the front of the building which was too dim. He was not aware that the City noted in the January audit that there was a defect of the yard and or other part of the property not being kept clean of litter, garbage and other debris and noted that this was throughout the property.

[86] There were two cleaners in 2012, Roy and Jackie. Roy cleaned the lobby, elevator, garbage chute, the front to pick up garbage and sometimes the basement. Jackie’s duties were mostly the apartments and sometimes staircases.

[87] He did not tell “Jack” to cut off a stump in 2012.

[88] The lighting around the building was attached to the building and was on a timer. The City would check the luminesce and if it was low, the inspector would say so.

[89] Mr. Musanhi’s evidence in chief was often elicited with the use of very leading questions. On cross examination, he was fairly truthful and a credible witness. The answers elicited though through leading questions in chief are problematic. For example, Mr. Musanhi’s evidence on the frequency of the cleanings each day was contradicted by Michelle Scott who had first been a cleaner at the premises in 2009 the superintendent in 2012. Mr. Musanhi also testified that the supers were involved in cleaning outside whereas Ms. Scott, who no longer works for the defendant, testified that once the cleaning was done outside in the morning, everyone had designated duties indoors. She testified that she was hardly outside as a super because she was too busy with the work she had to do inside, again contradicting Mr. Musanhi’s evidence. On the whole, Mr. Musanhi was a credible witness on cross examination.

Evidence of Mitchell Scott

[90] Ms. Scott worked the premises between March 2012 to July or August 2013 as a superintendent with her husband, Dan. She moved to Lindsay to open a restaurant.

[91] She worked for the defendant on two occasions, in 2009 as a cleaner and in 2012 as a superintendent.

[92] She testified that “Jack” was not working in 2012 as he had a bad accident in the elevator on the premises. She found out about the accident when she saw it on the news. As the super she was mostly in the office. She did not ask him to chop down any stumps.

[93] She does not remember if anyone contacted her to advise her that someone fell.

[94] She did not use the camera system and did not know how it operated. She does not recall anyone coming into the office to make a request for the video but stated, such a request would have had to be in writing which would then be passed on to Ms. Krebs. She does not recall anyone making such a request in writing.

[95] She never saw any wood or stick protruding on the corner of the building.

[96] The same people who cut the grass did the snow removal. She testified that there was not usually a second cleaning once they have all been out there because everyone had their particular jobs to do inside. There were schedules in the office which indicated who does what, including cleaning.

[97] Ms. Scott, unprompted, testified that individuals threw stuff of their balcony.

[98] The questions of Ms. Scott were, on balance, mostly leading questions. However, she declined to agree with suggested answers when she had no recollection of events and did not adopt answers as her own. On cross examination, she testified that she had no recollection of being at the premises on the day of the incident or the following day.

[99] She conceded on cross examination that the City came all the time to inspect and that the Fire Department would also come to inspect. She agreed that the City of Toronto audited the building in January 2013 and stated that there was a posting from the City of deficiencies, after the City inspector attended at the premises and inspected it. She did not recall the date, or the details of the deficiencies identified by the City.

[100] I found Ms. Scott to be a truthful and credible witness.

Evidence of Paul Krebs

[101] Mr. Krebs is the son of Ms. Krebs. Since 1995, he has worked in what he called the family business, though he became less involved in 2016 after starting his own business. Before that, he was more involved by 2001 after he graduated. He would go in to process deposits, pick up supplies, do walk arounds to collect cheques, among other administrative work. He was never an employee of what he called “the family business”. He would usually go in ten to twelve times a month.

[102] He testified that every year there was a group that came once a week to the cut grass, cut the bushes, and pick up garbage and also did winter maintenance. He stated that all the grassy areas were maintained including the grassy area where the big tree was. He never saw anything protruding from the ground. He would see people walking over in that grassy area. It has always had grass and there has never been any fences or posts. He testified that it took one to 2 hours every morning to maintain the building every morning and the focus was on repairs the rest of the day. Extra cleaners and additional staff and contractors would come in for various projects such as lawn maintenance and potholes. On occasion the City of Toronto would audit the building and work orders would be given to the super and the larger items would be given to contractors.

[103] He testified that each entrance has a large light over it, and every door has a light over it. There were lights on the exterior of the building, and there are lampposts in the parking lot. He has been there in the wintertime early in the morning when it is dark, and there are lights in between the doors, and they were bright. The lights were on a timer set up by the electrician. On the northwest wall, lights were attached to the bricks, and five or six feet from the corner of the building, just above the second floor, there was also a flood light that would also light the area.

[104] He has never seen a camera on the north side of the building from 1995 to the time of the fall.

[105] On cross examination, Mr. Krebs testified that he did not know the name of the company that did the lawn care. He did not know what the condition of the lawn was on the day of the incident. He was not responsible for maintenance of the lights. He testified that “Dan and Michelle” were supers for several years, when Ms. Scott testified that it had only been about a year. He had no personal knowledge of what the lawn was like on the night of the incident. He could not recall when he had last attended. He had no responsibility for inspecting the outdoor maintenance. He had no knowledge of tenants throwing garbage off their property.

[106] Ms. Krebs suggested a number of leading questions and at times put in her own evidence through the questions.

[107] It was extremely difficult at times to figure out what Mr. Krebs evidence was given the number of leading questions employed by Ms. Krebs and some of his answers were the same answers as his mother, despite the order excluding witnesses. While it may be coincidental, it is hard to determine how much of Mr. Krebs’ evidence was his own testimony and not influenced by the leading questions or other factors. In the circumstances, I can place very little weight on his evidence.

LIABILITY

[108] There were no witnesses to the fall. Ms. Tarrington’s son came upon the aftermath. There was no prohibition or restriction against tenants walking in the area where Ms. Tarrington fell.

[109] Ms. Tarrington’s evidence is that she tripped and fell on a wooden post sticking up from the ground in a grassy area, close to the building, in an area used by others. Her evidence as to what caused her to fall is corroborated by her son, Mr. Livingstone, who found her on the ground that night, clutching her arm, and crying in pain. He verified what caused her to fall by using the light on his cell phone. Just like his mother did, he too testified that the lighting in that area was poor. Though their description is slightly different, both state it was a protrusion from the ground, surrounded by grass, and both say the lighting was poor. Ms. Tarrington’s evidence about the garbage and litter on the premises was noted by the City of Toronto in its January 2013 audit report, which took place over a period of time. The defendant’s assistant super, Mr. Musanhi, who is still working for the defendant and has much to lose, admitted on cross examination that the City found that the lights at the front of the building was dim, which made it into its audit report. It is also Mr. Musanhi’s evidence that if the City found deficiency in the luminesce, the City would say so, and of course the issue would be fixed.

[110] Mr. Musanhi also testified about a “wooded” structure fencing off the garbage area. The defendant did not specifically address this evidence and not much can be made of it.

[111] The key question for the court is whether the grassy area was properly maintained. The defendant has not produced any maintenance records, any of the schedules for work done, or the maintenance schedules. Ms. Scott, the defendant’s witness who was credible, did not testify as to how often the contractor would attend to provide lawn maintenance and her evidence on there being an afternoon cleaning, is in stark contradiction to that of Mr. Musanhi, who is still employed by the defendant. Ms. Scott also corroborated Ms. Tarrington’s evidence that people threw stuff off their balcony. For his part, Mr. Musanhi, the defendant’s witness, testimony was that tenants were always throwing things.

[112] The only evidence offered by the defendants of a system of maintenance of the grassy area is that every week the contractor would cut the grass. No documents have been produced despite Ms. Krebs testifying that “Bob” did this work for 15 years.

[113] Pursuant to section 1 of the Occupiers' Liability Act (“the Act”), “occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

[114] Therefore, as the landlord, the defendant was an “occupier”, and, based on the admissions at trial by Ms. Krebs that the defendant was responsible for the maintenance and repair of the premises, the defendant would meet the definition as well.

[115] Section 3 of the Act imposes a duty on occupiers to take such care as is reasonable in all of the circumstances to ensure that their premises are safe.

[116] Pursuant to s. 8(1) of the Act, a statutory duty of care is established under section 3(1) to residential tenancies obligating landlords to ensure the reasonable safety as required by the Act to be shown by an occupier of the premises. The section provides as follows:

8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

[117] Section 20 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 provides that:

20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.

(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.

[118] The defendant was responsible for the maintenance of the premises and therefore was the occupier of the area where Ms. Tarrington fell. In the seminal decision of the Ontario Court of Appeal, Waldick v. Malcolm (1989), 1991 CanLII 8347 (ON CA), 70 O.R. (2d) 717, aff'd (1991), 1991 CanLII 71 (SCC), 83 D.L.R. (4th) 114 (S.C.C.), the court stated:

All courts have agreed that the section imposes on occupiers an affirmative duty to make their premises reasonably safe to protect others from foreseeable harm ... The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable."

The court emphasized what constitutes reasonable care will turn on the specific facts of each case. Subsequent cases have expanded upon this principle to address situations of known danger, for example ice and snow conditions in parking lots.

Courts have stated defendants need not meet a standard of perfection; however, the owner "must have a system in place to ensure users will be reasonably safe from slipping and falling due to weather conditions. Furthermore, the system must be functioning properly." (Gardiner v. Thunder Bay Regional Hospital, [1999] O.J. No. 833 (Gen. Div.) p. 8; Przelski v. Ontario Casino Corp., [2001] O.J. No. 3012).

[119] On the evidence, Ms. Tarrington fell on the defendant’s premises at the back of the building. Her evidence that the area was poorly lit is corroborated by her son who did not witness the fall but the aftermath. The City’s audit report only four months later which found deficient lighting at the front of the building (it was dim) only further undermines Ms. Krebs’ credibility on the sufficiency of the lighting which, based on her testimony, can be inferred to be the case at all times. Ms. Krebs brought the general maintenance of the building in issue and the City audit reports, which sets out numerous deficiencies with respect to lighting, and the evidence of her own witnesses would undermine her narrative that the building was well maintained.

[120] I accept Ms. Tarrington’s testimony that she tripped on a wooden post protruding from the ground in a poorly lit area as she was a very credible witness, as stated above. This was an area used by others and should have been known to the defendant and maintained.

[121] The defendant has not demonstrated that it had a system of maintenance in place. An adverse inference may be drawn from the fact that it did not call the second head super, to testify or any person who actually was involved in the maintenance of the area from the contracting company.

[122] Based on the defendant’s own evidence, there were 80 cameras. At least one of the photos, as identified by Mr. Livingston, and acknowledged by Ms. Krebs when she put it to him, showed her office. She has given evidence as did her son and Mr. Musanhi, and her other witness, that there was a camera in that area, but the defendant has never produced any footage even to demonstrate to the plaintiff that the incident was not captured.

[123] There is no evidence that Ms. Tarrington’s weight, walk, or any of her medical conditions caused or contributed to her trip and fall. While there is a reference to “ETOH” in the hospital records, Ms. Tarrington was never asked whether or not she had been drinking before the incident that night either in chief or in cross, and, if so, what she had consumed, how much she had consumed, and when she had consumed it. It is not clear whether the notation related to recording a history as reference was made to a history. Given the lack of evidence, no weight can be placed on the reference in the records

[124] The defendant has not established any contributory negligence on the part of Ms. Tarrington.

[125] As the occupier, the defendant was responsible for the maintenance of the premises. In the absence of any credible evidence to show that reasonable care was taken to put an adequate system of maintenance in place to ensure that their premises was safe, and given problems of credibility with the defendant and admissions made by some of her own witnesses, which will not be repeated here, and, to a lesser extent, the City’s building audits, I find that the defendant failed in its duty to ensure that the plaintiff was reasonably safe while on the premises.

DAMAGES

i. General Damages

[126] Ms. Tarrington was 61 years old at the time of the incident and had last worked in 1968. She had been on ODSP at one point. Her significant pre-existing medical history will not be repeated but is taken into consideration in determining causation and damages.

[127] Dr. Richards’ testified that it is possible that her pre-existing diabetes and COPD could have had an impact on her healing, the first would have affected her ability to heal, and the second (if she was coughing a lot) the union of the fracture.

[128] After being transported to the hospital on the night of the fall, she was assessed for right arm pain. She was later diagnosed with a right arm spiral displaced and shortened humeral shaft fracture and referred for follow-up to the fracture clinic. Subsequent diagnostic imaging shortly after the incident revealed posterior displacement of the distal humeral fracture fragment. A month after the incident, further diagnostic imagining revealed a displaced comminuted fracture with overlapping of the fracture ends and severely angulated proximal humerus laterally relative to the distal shaft.

[129] Ms. Tarrington underwent two significant surgeries on her right arm within a month of each other. She initially underwent surgery on June 17, 2013, consisting of an exploration and decompression of her radial nerve and repair of her non-union mid-shaft fracture of her right humerus with local bone graft. She followed up within a week of the surgery due to swelling in the arm. Diagnostic imagining was completed and showed that the fracture fragments of the internal immobilized fracture of the humerus separated with marked angulation at the fracture site. The uppermost screw was lying on the soft tissue within her arm, some screws had backed out and deformity was observed.

[130] Ms. Tarrington underwent a second surgery month later, on July 17, 2013. She underwent an open reduction right humeral shaft revision nonunion repair with open reduction and internal fixation using a 12-hole plate, hardware removal and radial nerve revision exploration.

[131] Dr. Richards state that she is left a permanent and serious impairment as a result of the fall. Almost nine years later, she is left with permanent impairment and ongoing pain in her right arm which impacts her function including her ability to complete her pre-incident recreational activities, affects her sleep, and her activities of daily living. The disability with respect to her right dominant arm is significant. She is also left with two disfiguring scars from the two surgeries.

[132] The defendant is not being asked to compensate the plaintiff for her pre-existing condition. However, the defendant must take the plaintiff as it finds her. The plaintiff had no preexisting problem with her right arm. To the extent that the injury to her right arm and her healing had a more severe outcome due to her underlying conditions, does not mean that the plaintiff cannot succeed. If the plaintiff can prove, on a balance of probability, that “but for” the negligence of the defendant, she would not have sustained a loss, then she may recover damages: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458; Hanke v. Resurfice Corp., 2007 SCC 7 (S.C.C.); Clements (Litigation Guardian of) v. Clements (2012), 2012 SCC 32, [2012] S.C.J. No. 32.

[133] In, Athey v. Lionati , Major J., speaking on behalf of the Court, enunciated the principles of causation in tort law, as follows (Athey v. Lionati, [1995] 3 S.C.R. 458 (QL) at 5-6):

a. Causation is established where the plaintiff proves, on a balance or probabilities, that the defendant caused or contributed to the injury;

b. The test for determining causation is the “but for” test, in which the plaintiff must establish that the injury would not have occurred but for the defendant’s negligence;

c. In cases where the “but for” test is unworkable, courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury. As stated above, a materially contributing factor is one that falls outside the de minimus range; and

d. The plaintiff need not prove that the tortious act was the sole cause of the injury. As long as the tortious act is part of the cause, the defendant is liable, even if the tortious act alone was not sufficient to cause the injury.

[134] Given Ms. Tarrington’s pre-existing underlying conditions, she was more vulnerable to serious consequences, which did materialize, when she broke her arm. With respect to her right arm, the plaintiff was a thin skull plaintiff and arguably a crumbling skull with respect to her depression. The defendant would only be responsible for any exacerbation of her depression, and on the evidence, her depression has improved.

[135] Based on the evidence before the court, I assess Ms. Tarrington’s general damages for pain and suffering as a result of serious orthopedic injury to her right arm in the amount of $150,000.00.

ii. Loss of Housekeeping and Handyman Capacity

[136] Based on the evidence of the plaintiff’s family members, in the immediate aftermath of the fall, she required significant assistance with personal care and housekeeping. She is able to perform some housekeeping chores with pain and is not able to perform other housekeeping chores.

[137] In McIntyre v. Docherty, 2009 ONCA 448 (Ont. C.A.), the Ontario Court of Appeal recognized three possible scenarios under which a plaintiff may maintain a claim for compensation under this head of damages. Lang, J.A. stated at paras. 21 - 23:

Different housekeeping losses may arise in different scenarios. In some households, the injured plaintiff may have been a full-time or sole homemaker whose work permitted a spouse or partner to maintain employment outside the home. In other households, the plaintiff may also have worked outside the home and shared responsibilities for housekeeping with other family members. In one-person households, the plaintiff may have been responsible for both housekeeping and outside employment.

Whatever the household circumstances, an injured plaintiff will cope in one or more of the following three ways. First, the plaintiff may leave some or all of the housekeeping undone. Second, the plaintiff may perform some or all of the housekeeping functions, but with increased pain and decreased efficiency. Third, the plaintiff may rely on paid or unpaid third parties on a part or full-time basis to perform some or all of the housekeeping.

In each of these scenarios, the plaintiff will suffer losses arising from the inability to do work that she or he previously undertook within the household.

[138] The three scenarios therefore recognized in McIntyre v. Docherty at paras. 62 to 75, are as follows:

i. If a plaintiff leaves work undone;

ii. If the plaintiff can complete housekeeping chores, but does so with pain and difficulty;

iii. If the plaintiff has hired a third party to provide a pre-trial out-of-pocket loss by hiring replacement housekeeping services.

[139] Ms. Tarrington is able to perform some pre-incident housekeeping, but with pain. She is no longer able to complete certain housekeeping chores because of the pain in her right arm. She has functional limitation, which is permanent, and based on Dr Richards’ opinion, would experience difficulty with any activity involving elevating her right arm.

[140] I would assess Ms. Tarrington’s past loss of housekeeping and handyman capacity in the amount of $20,000.00 to the date of trial.

[141] I would assess Ms. Tarrington’s future loss of housekeeping capacity in the amount of $25,000.00.

iii. Cost of Future Care

[142] The defendant takes the position that Ms. Tarrington did not participate in physiotherapy to help with her healing and rehabilitation. Ms. Tarrington testified that she did not participate in physiotherapy because she did not have the funds to do so. She agreed that if she had the financial means to attend therapy, she would do so to make her arm better.

[143] She takes over the counter $15 dollars for a bottle of Advil, which lasts about three weeks. She sometimes takes her daughter’s Tylenol. She has been taking this over the counter medication since the incident. She does not take pain killers because of the effect on her.

[144] While impecuniosity is not generally a defence to a lack of mitigation argument, it is understandably that Ms. Tarrington who is on CPP would be in a position to fund treatment for her arm. Dr. Richards indicated that physiotherapy, massage therapy and acupuncture would help to relieve her pain temporarily and she requires analgesics as a result of her right arm injury.

[145] The plaintiff has not provided any evidence on the quantification of her the cost of future medical expenses and physiotherapy, acupuncture, massage therapy and analgesics, though there is some support for e plaintiff’s claim for the cost of these items. I would have thought that the plaintiff would have providing some evidence from her treating doctors and quantification from the appropriate witness as to what reasonable costs are anticipated given her injury to her right hand. There was not sufficient evidence to determine whether the plaintiff will require any assistance on account of the aggravation of her emotional conditions, and on the evidence of her family and Ms. Tarrington herself, she has improved and may have returned to her pre-accident state, at least in this area.

[146] The assessment of future pecuniary loss is of necessity a somewhat speculative exercise: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC); Graham v. Rourke 1990 CanLII 7005 (ON CA), [1990 CarswellOnt 2676 (Ont. C.A.).

[147] If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation: Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA). Dr, Richards indicated that there was a 10% possibility that the plaintiff would require further surgery.

[148] I would award the plaintiff $15,000.00 for past and future out of pocket expenses for medication and future treatment.

iv. OHIP’s Subrogated Claim

[149] OHIP’s subrogated claim stands at $ $26,626.36 and was not challenged by the defendant.

DISPOSITION OF THE COURT

[150] For the above reasons, I conclude that the defendant is liable to the plaintiff for damages as follows:

Non-pecuniary damages $ 150,000.00

Damages for future loss of housekeeping and handyman capacity

Past $20,000.00

Future $25,000.00

Future Care Costs (treatment, medication) $ 15,000.00

OHIP Subrogated Claim $26,626.36

[151] The total damages therefore amount to $236,626.36.00.

[152] The plaintiff is entitled to prejudgment interest pursuant to the Courts of Justice Act.

[153] The plaintiff shall deliver written submissions with respect to costs to the Trial Coordinator within 60 days of the date of these Reasons. Ms. Krebs shall deliver the defendant’s Responding submissions thirty days thereafter.

A. Ramsay J.

Released: April 6, 2021

[^1]: Exhibit 6 [^2]: Exhibit 12 [^3]: Exhibit 13