COURT FILE NO.: 15-63434

DATE: 20210326

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL BOONE, by his litigation guardian, ELIZABETH BOONE,

ELIZABETH BOONE and LAURENCE BOONE

Plaintiffs

• and –

DR. KEVIN O’KELLY and DR. KARL R. SMYTH

Defendants

Joseph Obagi, Tom Connolly, Sarah Russell, for the Plaintiffs

Wayne Brynaert, Erin Page, Stephanie Doucet, for the Defendants

HEARD: October 5,6,7,8,9, 13,14,15,16, 19,20,21,22,23,26,27,28,29 30, November 3, 6, 24, 25, and 26, 2020

REasons for decision

beaudoin j.

Overview

[1] The Plaintiff, Paul Boone (“Paul”) was diagnosed with hydrocephalus shortly after his birth on March 7, 1963. At eight weeks of age, a shunt was inserted into his spine in order to drain fluid from his brain. That shunt was replaced when Paul was five years old. By the time he was 11 years of age, Paul started to develop a curvature of his spine which required major surgery (the Dwyer procedure). That surgery was followed by surgeries to the hamstring muscles of his legs and, later, to his right foot. Paul went on to develop kyphoscoliosis, an extreme curvature of the spine. Paul suffers from a number of medical conditions which include developmental delay, swelling of his lower limbs, an enlarged prostate and restriction of his pulmonary function.

[2] Paul has always resided with his parents, Beth and Larry Boone (“Beth” and “Larry”). As a result of their excellent care and attention, Paul was able to enjoy a full life. Paul could walk independently, and he participated in numerous activities including, but not limited to, bowling, swimming, skating, dancing and mini-putt golf. Paul traveled with his parents. He attended a sheltered workshop daily. He was independent in almost all aspects of his daily life. He only required assistance when putting on his socks and shoes and, sometimes, he needed limited toileting assistance.

[3] From time to time, Beth and Larry would travel on their own and Paul would be placed at the Lavonne Respite Care Centre (“Lavonne”) for a few days. During a stay there, on October 13, 2010, Paul suffered what proved to be a serious fall. He underwent a craniotomy to control bleeding in his skull. That surgery was successful and was followed by a procedure to have a filter removed from Paul’s interior vena cava. During this later procedure (“the incident”), the Defendant radiologists caused a puncture to Paul Boone’s heart requiring immediate repair. The puncture disrupted the flow of blood to Paul’s spine resulting in the paraparesis of his lower limbs. Paul can no longer walk.

[4] Paul is now confined to a wheelchair. For practical reasons, he wears diapers and he can no longer go to the bathroom on his own. He requires two-person transfers when he gets up, when he goes to the bathroom, when he has a shower and when he goes to bed at night. Paul is dependent on others for almost all activities of daily living. While he has resumed some of his former activities, witnesses uniformly testify that Paul has changed; he is more subdued. He has been diagnosed with a depressive disorder. Until very recently, Beth and Larry devoted almost all of their waking hours to providing Paul with attendant care.

[5] The Defendants, Drs.Kevin F. O’Kelly and Karl R. Smyth, have admitted liability in these proceedings. They have further admitted that their failure to comply with the relevant standard of care resulted in the paraparesis of Paul’s lower limbs. This trial proceeded as an assessment of damages only.

[6] Given Paul’s complex medical history, the assessment of damages requires a consideration of the “crumbling skull” versus “thin skull” principles and the application of any general or specific contingencies to that assessment.

The Issues

[7] The issues to be determined are:

What damages, if any, are the plaintiffs entitled to under each of the following headings:

a) Beth and Larry Boone:

• General damages for loss of care, guidance, and companionship;

• Past attendant care services provided to Paul Boone.

b) Paul Boone:

• General damages for pain, suffering, and loss of enjoyment of life;

• Out-of-pocket expenses;

• Future care costs including medication and assistive devices, professional services, personal care services and home and vehicle maintenance.

c) Determination of the Ministry of Heath/OHIP subrogated claim.

d) Entitlement to a Management Fee.

PART 1 – SUMMARY OF THE EVIDENCE

Beth Boone

Paul Boone before October 13, 2010

[8] Paul’s history was provided, for the most part, by his mother, Beth, who was born in May 1939. She and Larry were married in 1962. The Boones later had a daughter who was born in 1964.

[9] Despite Paul’s diagnosis of hydrocephalus and subsequent surgery, he appeared to be otherwise normal. He did not walk until he was 18 months of age and he did not talk until he was two years old.

[10] When Paul was five years old, the shunt in his spine was replaced. As he grew, Paul kept falling and stumbling over. When he was ten years old, Beth understood from Paul’s doctors that Paul had suffered an allergic reaction to the shunt material in his spine. At age 11, Paul underwent the Dwyer Procedure where a wire was placed on his spine. The hamstring muscles in Paul’s legs subsequently needed to be stretched and this necessitated further surgery. Paul wore leg braces for a period of time and he later required surgery on his right foot. The last surgery took place in 1975 and there have been no other surgeries for 35 years, until October 2010.

[11] Paul began to experience seizures at an early age. Paul’s seizures could be severe and frequently resulted in his hospitalization. As Beth said: “hospitals are not strangers to us”.

[12] Problems in Paul’s intellectual development became apparent by the time he was in the second grade. He attended special education classes and then an alternative school until the age of 18. Paul did not graduate from high school but proceeded immediately to work in a sheltered workshop.

[13] As Paul grew, his spine continued to curve resulting in his protruding abdomen and forcing Paul to lean to the right. Paul cannot sit normally, and he cannot sleep on his back. This extreme curvature of the spine was complete by the time Paul was 20 years of age.

[14] Paul’s protruding abdomen prevents him from seeing his feet. While he could formerly walk on smooth surfaces, he could not walk on grass or rough ground. Distance could be a problem; a walk around the block would leave him exhausted.

[15] The Boone family moved to Ottawa in 1983 and Paul’s life took on a familiar pattern. At home, Paul dressed himself, but his mother helped him with his shoes and socks. He was completely independent for self-care and activities of daily living, except for showering where he would hang on to a grab bar and be showered by his mother. He could use the washroom independently, but his twisted torso could lead to messy bowel movements and Beth might have to help clean up. Paul’s protruding abdomen required him to keep a very wide stance between his legs when he sat at the kitchen table.

[16] Paul had designated tasks around the house, including setting the table and taking a short walk to get the mail. Paul followed his daily routine faithfully. The family lives in a two-story home. Stairs were not a problem. Paul got in and out of cars without much difficulty. Paul found work in a sheltered workshop, ARC Industries, which later became the Loeb Centre, and this was an important part of his day. He relied on Para Transpo to get to work.

[17] Paul enjoyed a large range of physical activities and took part in the Special Olympics as a skater where he skated with his father for support. He learned how to swim, and he attended summer camp every year for two weeks. He rode a tandem bicycle with his father.

[18] Paul loved to watch hockey and game shows on television. Board games were a favourite activity. Paul liked to keep statistics about the weather as well as his bowling and mini-putt scores. He played simple computer games. Notes that he exchanged with his mother demonstrate his ability to write and reveal a sarcastic sense of humor.

[19] A pinball machine and an air hockey table were set up in the basement. Paul had no difficulty navigating the stairs. He had hobbies. He still loves to play cribbage and other card games. Paul went bowling every week and earned a cabinet full of awards.

[20] Paul travelled with his parents to Myrtle Beach and would join his parents at their regular golf games. While he could not play golf himself, he would practice putting on the green. At one time, he could drive the golf cart. He enjoyed mini-putt golf. He visited his grandparents every summer.

[21] Paul took part in a “Saturday Social” organized by a local community centre for persons with disabilities. He enjoyed dancing to the extent that he could shuffle his feet. He was always the last one off the dance floor. Paul kept his own bank account. He managed his money and paid for his own groceries and for his own clothing.

[22] Beth described Paul as a passive participant in social activities. Paul would not join in conversations, but he would be attentive and listen to what was going on. The parents socialized with friends and brought Paul along. As she said: “the Boones are three”.

[23] According to Beth, Paul’s disabilities did not vary for 20 years. While their family life was different, she and Larry never considered Paul to be a problem. The Boones were avid golfers and squeezed in their golf games when Paul was at the Loeb Centre. They could leave Paul alone for short periods of time, but they would have someone stay with him if they were out for the evening. Beth and Larry arranged for five weeks a year of respite care. Their main concerns during this time were Paul’s seizures. As these were nocturnal, they relied on a baby monitor to check in on him.

[24] Beth was taken to notations of falls found in various records. An x-ray was taken on August 31, 2000 which referenced a fall at that time. Beth had no recollection of it. She said it could not have been much of a big deal.

[25] A note dated August 15, 2008 referred to a fall on the stairs at Lavonne. Paul was seen at the walk-in clinic. There was an x-ray, and Paul was referred to physiotherapy. According to Beth, Paul “got over it” and he did not miss any work.

[26] Another fall at Lavonne is noted in a record dated February 4, 2009. On this occasion, Paul had injured his shoulder and arm. He had an x-ray and attended physiotherapy once again. Beth did not remember if Paul was off work. She described work as Paul’s life. Paul was not one to complain; “he just got on with things”. Beth blamed the stairs at Lavonne as being the cause of the falls.

[27] A family physician’s note dated October 2, 2009 referred to another fall. Despite this notation, Beth claimed that Paul had instead suffered a bad seizure and had injured his hand. She did not recall a fall.

[28] Another fall occurred during the Special Olympics in January of 2010. Larry was skating with Paul when another skater bumped into them. Paul injured his hip and attended physiotherapy once again and went back to work. According to Beth, Paul resumed skating the next week. Other than these events, Beth claimed to have no recollection of any other falls.

[29] Beth was asked about a fall that may have occurred in July of 2010 in the cafeteria at the Loeb Centre. She had no recollection of this event and she was surprised to see a reference to it in the Loeb Centre records. Despite these falls, she said Paul continued his activities as before.

[30] The family was referred to Dr. Marshall at the rehab centre in 1999 for recommendations for custom seating at the seating clinic. A custom wheelchair was built as it was thought that it could be useful, but Beth said the wheelchair was too big and did not work. According to Beth, Paul was never able to use it. Some of the cushions from that wheelchair were repurposed to build a big blue chair that is still in use today.

[31] A later referral to the rehab centre occurred in May 2010 when the family physician referred Paul to a physiatrist, Dr. Lynne MacGregor. Dr. MacGregor recommended a brace for Paul’s right foot and the use of a walker. She also arranged for CCAC to attend the family home and assess the safety aspects of their house.

[32] Beth claimed that the physiotherapist at the rehab centre did not think that Paul needed a brace. While a walker was selected, Beth said Paul could not use it because of the tilted way he walked. The CCAC attended at the house and suggested additional grab bars in the shower.

[33] Beth considered Paul to be in good health in the Fall of 2010. Although he continued to suffer seizures, these were generally nocturnal. Various medications had been prescribed to control the seizures, but nothing worked until he had two seizures in the emergency room following the fall in October 2010. At that time, Paul was prescribed a medication called “Keppra” and he has had no seizures since that time.

[34] Paul took medication for high blood pressure and for an enlarged prostate. He took allergy medication and he used a puffer. Beth said there were no other issues prior to the events of 2010. She said his breathing issues related to the displacement of his lungs.

October 13, 2010 to February 4, 2011

[35] Beth and Larry left Paul at Lavonne on October 13, 2010. Paul got up in the night and he was found on the floor in the hallway. He was taken to the hospital and a brain bleed was diagnosed. Paul underwent an emergency craniotomy. The surgery was successful but Paul’s stay in hospital was complicated when he contracted the highly infectious Methicillin-Resistant Staphylococcus Aureus (“MRSA”). Paul was forced to be in isolation, and he developed bed sores due to his inability to move around. Paul then attended rehab daily and he finally learned how to use a walker properly.

[36] Following his discharge from rehab at the end of January 2011, Paul returned to work at the Loeb Centre the next day. Beth thought that Paul was back to normal. He was not using the walker in the house. There was a second walker left at the Loeb Centre in the event that he needed it. To her knowledge, Paul did not use it.

After February 4, 2011

[37] Beth described the incident of February 4, 2011 and its impact on her and Larry. After the heart surgery, Paul was placed in intensive care. Paul developed a very serious bed sore which took a long time to heal.

[38] Paul was transferred to the rehab centre at Saint Vincent’s Hospital where he remained for 13 months. At all times, two people were required to attend to him while he was there. As a general rule, only one Personal Support Worker (“PSW”) was available, so Beth or Larry became the second necessary helper. Paul’s discharge from Saint Vincent’s on April 23, 2012 was delayed because his bedsore required antibiotic treatment.

[39] Beth and Larry prepared for Paul’s return. They installed a ramp to the house and an elevator from the family room to Paul’s bedroom. Some time was required before a properly working wheelchair could be found.

[40] Beth discussed her own health. She has had both knees replaced. She recently had hip surgery, and she walks with a cane. She has a heart murmur. She takes medication. She claims she feels fine. In April of 2019, the Boones received some funds and hired a case manager. Beth found that this has made a great difference. She had not realized that she needed one before.

After April 23, 2012

[41] From the time when Paul was discharged from Saint Vincent’s until April 2019, life with Paul changed completely given his total dependence on Beth and Larry. They got Paul out of bed in the morning and moved him to get him to the table. While Paul is still continent, they cannot get him to the washroom on the second floor. The main floor powder room is inaccessible. Paul requires six to seven diapers a day and he is frustrated by his inability to use the washroom.

[42] Paul was able to return to the Loeb Centre because the Boones have provided a bed to assist with diaper changes when this is necessary. Paul’s attendance was reduced to four hours a day.

[43] Beth and Larry obtained a hospital bed with an air mattress. Initially, a motorized sling was used to get Paul in and out of bed, but the Boones found it difficult to operate. They now rely on another device, a pivot disk (also referred to as a “Sam Hall Turner”). The Boones place Paul’s feet on a platform and then Paul pulls himself up while his parents hold on to the device and monitor his movement. Larry or Beth then rotate the disk and Paul lowers himself onto the bed or the wheelchair.

[44] The Boones changed the flooring in Paul’s bedroom and in the hallway. Tracks on the ceiling in the bedroom, and in the family room, accommodate the sling. The sling is still used on occasion.

[45] Beth discussed the assistance they get from PSWs. They receive three hours a day of publicly funded assistance, for a maximum of 21 hours per week, through the Local Health Integrated Network (“LHIN”). The schedule is set out in greater detail below. The Boones accessed funding from the March of Dimes to assist with home modifications and for respite care.

[46] Because Paul always requires a two-person transfer, either Beth or Larry must be present to assist the PSW. One of them must always be present to help with diaper-changes.

[47] Paul can still feed himself with the assistance of a platform on the table that raises the level of his plate, otherwise the table would be too far for Paul to bring food to his mouth.

[48] Paul still maintains his weather book and statistics, but his ability to write is compromised by the sitting angle he finds himself in. Paul is wheeled into the shower on a commode chair. Even though he is showered, his groin and behind must be washed separately. His diaper use requires the application of several creams.

[49] Beth now serves Paul his breakfast and administers his medication. Dressing Paul is somewhat problematic. Beth has cut Paul’s coat down the back so that it can easily fit in the wheelchair. Paul wears elastic pants without pockets which do not allow him to carry a wallet easily and control his money as he used to. He no longer helps in the kitchen and the Boones must clean up after him. Paul does not get the mail. He cannot be taken for a drive anymore since he can only ride in their modified van and this is not easy. According to Beth, Paul is naive and unable to accept his new limitations.

[50] Paul rarely goes out for groceries with Beth, and Beth can no longer go anywhere alone with him. Larry’s assistance is necessary. She and Larry are adapting their life in order to facilitate Paul’s continued participation in activities.

[51] According to Beth, Paul is not the same person. He used to be funny and witty and watch TV with belly laughs, but not anymore. “He is just not the same boy”. He says: “I’m better off in my grave”. Beth testified that Paul says this far too often. Paul no longer entertains himself. He is passive and he does not communicate his needs.

[52] The PSW schedule is as follows:

• On Monday, the PSW arrives at 7:00 a.m. and helps get Paul out of bed and change his diaper. The PSW comes back at 2:00 p.m. for another diaper change and do exercises with Paul. When the PSW leaves, Paul comes down, and, typically, the family watches TV or plays games. Beth and Larry cannot leave him on his own.

The PSW returns at around 5:00 p.m. for another diaper change and prepare the bed for the night. On Mondays, Paul goes bowling at 6:00 p.m. and comes back at 8:00 p.m. Someone takes Paul in their van. Once Paul is home, his parents change him, and they might watch some TV with him, and Paul goes to bed at 10:00 p.m.

The transfer disc is used to get Paul into bed. The parents do not have a PSW at night. They fasten Paul’s sleep apnea machine. Paul has used a sleep apnea machine since he returned from the hospital and Beth described this device as a “game changer”.

• On Tuesday, the routine is a bit different because the PSW comes for two hours at 7:00 a.m. On this day, Paul is given a shower. Either Beth or Larry must assist the PSW. They have borrowed this extra hour from the time allocated to the weekend. The PSW returns at 2:00 p.m. for a diaper change. In the afternoon, Paul attends the Aktion Club, operated by Kiwanis. He is picked up at around 5:00 p.m. and brought back at around 8:00 p.m.

• On Wednesday, there are three PSW visits.

• On Thursday, during the nice weather, Beth and Larry take Paul swimming in the afternoon. There is a hydraulic lift that allows Paul to get into the pool. She or Larry are always with him and they attempt some exercises with him. This activity is limited to nice weather since Paul must go to and from the pool in his bathing suit.

Beth and Larry have a date night on Thursday evenings, and this is their only night off. They may add another social event if they can get someone to come and stay with Paul.

• On Friday, the regular routine is in place unless Paul is going to attend a baseball game or a hockey game, which may require a change in the PSW schedule.

• On Saturday, the PSW arrives at 9:00 a.m. There is another shower, shampoo and diaper change. Paul eats a late breakfast and the PSW returns at around 1:30 p.m. The Boones take Paul to church where he follows the mass. He no longer attends the Saturday social as frequently. On Saturday evenings, the family watches the hockey game during the hockey season.

• On Sunday, the PSW attends for two hours. She arrives at 9:00 a.m. for a bed washing and cleaning and re-attends at 5:00 p.m. for another diaper change.

Since April 2019

[53] In April of 2019, Beth and Larry obtained some funding and they hired a case manager, Angela Christian, who has helped them to find the appropriate supports. Now PSWs attend three evenings from 5:00 p.m. to 11:00 p.m. Plans to expand the service to Saturday and Sunday have been delayed because of COVID-19.

[54] An occupational therapist, Donna Matheson, now works with Paul. A physiotherapist has been brought on. Beth believes that Paul is making progress and that his leg muscles are stronger. There is tentative approval for Paul’s return to respite care at Lavonne in the future.

[55] Ms. Matheson and the psychologist, Dr. Tammy Ricci, have made referrals for speech therapy and Dr. Ricci has recommended counseling for Paul to deal with his depression. Beth questioned the need for a speech therapist. She and Larry have been told that they should get family counseling as a couple, but no plans have been made. Beth finds great relief in no longer having to make all of the decisions.

[56] Beth discussed their plans for when neither she nor Larry may be available. In vague terms, she said that someone would have to come in and take care of Paul. They want to keep him at home as long as possible. Paul can attend the Loeb Centre beyond the age of 65. A group home where Paul could obtain extra attendant care is also a consideration.

[57] Beth said Paul now chokes on his food because he can no longer sit up properly in his wheelchair. This led to his most recent hospitalization.

[58] Paul can no longer use the pinball machine and the Boones have disposed of the air hockey table. Beth and Larry no longer go on holiday. Paul no longer goes to camp. Beth and Larry no longer socialize. They manage to play golf, but they must squeeze it in. They cannot take Paul anywhere on their own. Their former life has disappeared.

Beth Boone’s Cross-Examination

[59] Beth described Paul’s present inability to shift himself in his chair as a significant problem. When taken through Paul’s medical history, she agreed that Paul had seizures before the incidents in question but repeated that he has had none since. She also agreed that Paul suffered from several conditions: glaucoma, allergies, an enlarged prostate gland, breathing issues and a lack of lung capacity. Beth admitted that when she looks at Paul, she sees her son, but medical specialists see him differently.

[60] Beth repeated that Paul’s choking problem has only become apparent in the last two years because Paul must lean so far back when he eats.

[61] In discussing Paul’s intellectual functioning, Beth said Paul cannot understand many things that are explained to him. He does not display emotions, and while he never cries, he can get angry. Paul’s sense of humor was revealed in various notes he had written. While Paul does not initiate conversation, he is attentive to what is being said.

[62] When Beth was asked about Paul’s recent consultation with Dr. Ricci for depression, she responded that the sleep apnea machine has been life changing for Paul. She said the referral to Dr. Ricci was suggested by her lawyers. As she said: “What do I know? I am just Paul’s mother”.

[63] Beth acknowledged that there is very little new medication being prescribed for Paul except for the medications for his paraparesis. Beth has found Paul’s recent weight gain very distressing. Beth conceded that aging may have an impact on Paul’s weight and that some of Paul’s weight issues could be genetic, but she blames Paul’s weight gain on the loss of use of his limbs. In her view, Paul’s prior mobility had required some effort which would have burned off some calories. Beth did not consider Paul to be overweight in the past as he always weighed about 180 pounds.

[64] Beth discussed Paul’s hospitalization that occurred during the trial. Paul had stomach issues and began vomiting. The Boones called 911. Paul had a blocked bowel. This is the fourth occurrence and Beth claims he is fine now.

[65] She described Paul’s memory retention as “not great”. If Paul took a phone message, he would not remember it, so they got an answering machine.

[66] Beth agreed that Paul could have never lived independently. She agreed that Paul was not going to improve over time and that she was being very defensive. When questioned about their future plans, her answers were vague. She considered Paul to be very easy to live with, only now, they must do everything for him.

[67] Paul’s routine has been kept in place as much as possible. He still goes to Monday night bowling. He goes out on Tuesdays but now it is with the Kiwanis club. When Paul goes to a hockey game on Friday nights, he is gone for 5 1/2 hours.

[68] Other elements of Paul’s routine are still present, but Beth said this now requires great effort on their part. Paul has not returned to camp since 2011 because this is a seven-hour drive, and since Paul is in a diaper, he needs to be changed.

[69] When Beth was shown some Google map directions which revealed that Paul could be brought to camp in less than five hours, Beth admitted that it was possible, but she had resigned herself to the fact that it was simply not going to happen.

[70] Beth disagreed that Paul could use a condom catheter. She said this was tried in the hospital and it did not work because Paul’s body is so different. She gave up on the catheter use when Paul came home.

[71] The discussion turned to the wheelchair; the one kept in the basement for 10 years. She described why it did not work for Paul. When it was suggested that she could have taken it back to have it modified, she said they did go back, and the rehab centre was unable to provide a solution.

[72] When referred to Dr. MacGregor’s assessment of Paul, Beth disagreed she told Dr. MacGregor that Paul could never leave home unaccompanied, and she gave the example of Paul’s regular use of Para Transpo. Beth disputed she would have told Dr. McGregor some things contained in her report, particularly about Paul having suffered a dozen falls.

[73] Beth agreed that Paul could not walk a great distance. She did not remember being told that Paul had suffered a fracture after one of his falls. She was surprised to see that in the reports. She agreed with Dr. MacGregor’s observations that Paul suffered infections of his feet and legs and from cellulitis in his lower limbs.

[74] Beth did not dispute Dr. MacGregor’s findings in her second report dated October 9, 2013. Dr. MacGregor recorded that Paul was “a poor candidate for ambulation.” Beth was very upset because this comment precluded Paul from any further rehabilitation.

[75] After being shown a further report from Dr. MacGregor dated July 22, 2014, Beth agreed that there was a mismatch between the doctor’s goals and her goals for Paul. Beth felt exasperated as she and Dr. Macgregor were not on the same page. The Boones could not access the rehab centre without Dr. MacGregor’s approval; they had to accept that Paul was paralyzed.

[76] Beth was taken to some examples where she did not follow medical advice. Dr. McGregor had recommended that Paul wear a brace on his right foot. Beth replied that the physiotherapist agreed that it was not a good idea.

[77] Beth was taken to the decision to obtain a tandem bicycle after Paul had undergone surgery to his spine. Beth and Larry had discussed their idea of purchasing that bicycle to help rebuild Paul’s leg muscles. When informed of this, Paul’s doctor was gravely concerned and advised against it. Beth and Larry disagreed and bought the bicycle on their way home. She claimed the doctor was very pleased afterwards because Paul’s leg muscles did improve.

[78] Beth was referred to a device that had been introduced at Saint Vincent’s to help with Paul’s breathing. She agreed that Paul always had trouble with his breathing and, even though the respirologist thought it might be useful, she and Larry did not see where it could help. As she summed it up: “I am his mother and I know what is best for Paul”. She acknowledged she is not a physician and she is not necessarily objective.

[79] While at the hospital in October 2010, Beth had been told not to enter the room where the medical staff were attending to Paul. She said she entered the room anyway because she and Larry were not getting answers. It did not occur to her that they could be interfering with his medical care. The Boones were very frustrated that nobody was telling them what was going on. Beth is still angry about this.

[80] As for the history of various falls, Beth said there were no falls that required Paul to be hospitalized or taken to a doctor until 2008.

[81] Beth had no recollection of a fall in the Loeb Centre cafeteria. As for the two falls that Paul suffered when he was at Lavonne, Beth claimed these were caused by the configuration of the stairs and the railings. She was never concerned about Paul’s balance unless he was on a rough surface or on ice. She confirmed that she and Larry had no concerns about Paul’s balance between May of 2010 and October of 2010.

[82] Beth was taken to Dr. Fletcher’s note of May 10, 2010 that referred to Paul’s balance problem. She replied that the doctors always thought that Paul had a balance problem and she would not have given Dr. Fletcher that information.

[83] Beth was referred to a note made by Carol Lalonde (Perreault) after a conversation she had with Larry in October 2010. Larry would have told Ms. Lalonde that they had installed extra railings at home because Paul had had quite a few falls at home. Beth disagreed with that statement and did not know where it came from.

[84] In another note from the CCAC dated June 1, 2010, the worker reported that Paul had severe scoliosis and he had suffered several falls. Beth did not know where that information came from and said it was incorrect.

[85] Beth was then taken to a document prepared by her prior to Paul’s admission to the respite care home just before the Fall of October 2010. Beth wrote:

Paul is less steady on his feet. He requires more assistance - especially with his morning grooming. Toileting can be messy, so we check his rear daily for cleanliness. (We have put in more safety bars and railings in our home. Paul has a walker, but he is still learning how to use it properly. We use the wheelchair for longer distances such as shopping at the mall, museums, etc.)

[86] Beth said that the comment about Paul needing “more assistance” was limited to Lavonne’s previous failure to see to it that Paul was shaved properly.

[87] Questions turned to Paul’s lack of balance. Beth was shown a note from the Loeb Centre, dated March 20, 2010 where Paul’s unsteady gait was observed. Beth said many people look at Paul and think that he is unsteady on his feet but that is just the way he walks. Beth insisted that there had been no change in Paul’s manner of walking between March of 2010 and October of 2010. She did not recall any falls.

[88] Questioning then turned to Paul’s use of a walker. Beth agreed that Paul did not acknowledge the risks of ambulating without the walker.

[89] Beth confirmed that Paul is continent of both bowel and urine. He has a commode chair. She conceded that the commode chair could be used but she finds this impractical.

[90] Beth was questioned about the use of a condom catheter. She said this had been tried in the hospital and that it did not work as it was too painful for Paul.

[91] In the past, Dr. McKim, a respirologist, provided them with a device (a bag) to improve Paul’s pulmonary function. She conceded that if she thought it was helpful, they would have used it. She claimed the bag was not natural for Paul, and over time, they discontinued its use.

[92] Beth conceded that Paul is on the list of highly sensitive people who are at high risk if they contract COVID-19. She acknowledged the risk presented by the large number of persons coming into the house to provide services to Paul, but she trusts the system.

[93] As for Dr. Burns, the defence expert physiatrist, Beth was very upset with his opinion that Paul’s ability to compensate for his disability would diminish with age. She was appalled that anyone could write that. Dr. Burns had never met Paul. She agreed that Paul might have to use a walker more often, but she is convinced that he would still be climbing stairs today but for the accident.

Larry Boone

[94] The video of his brief examination de bene esse was filed as an exhibit. It was conceded by counsel that his memory problems would undermine the reliability of any evidence he might give at trial. Larry is now 82 years of age and he is very close to Paul. Since Paul’s injury, they do not go out as much whereas they previously enjoyed several activities together. He described Paul as being much quieter.

[95] As for Paul’s future, he and Beth have looked at the possibility of a group home, but Larry has not seen anything he liked. Otherwise, they will need someone to come and live in the house with Paul. He did not observe any decline in Paul before the injury and described him as a joy to be with.

Gisele Thibodeau

[96] Gisele Thibodeau (“Gisele”) has been a support worker for the Ottawa Carleton Association for Persons with Disabilities (OCAPD) for over 30 years. She first met Paul when he came to the Lavonne Centre for respite care. She has observed Paul since 1991, first at ARC Industries, and then, at the Loeb Centre.

Before October 2010

[97] Gisele said Paul walks with a special gait that impressed her given his apparent disability. He did not require any assistive devices and Paul could walk the entire length of the Loeb Centre to his workstation and to the cafeteria without assistance. There were no special arrangements for him. Paul could attend at the washroom on his own.

[98] Gisele described the Loeb Centre as being less of a work environment and more of a drop-in centre. Paul would have been flagged if he needed additional assistance, but none was required. He was there for six hours a day, five days a week.

[99] Gisele developed a strong connection with Paul, and she saw him outside of the Loeb Centre. She would take him out for his birthday. In the early 90s, she started going to his parents’ home and spending Thursday evenings with Paul while his parents went out. She had no difficulty transporting Paul in her little sports car. He required no assistive devices.

[100] Paul had no difficulty sitting or eating in a restaurant. She described Paul’s hobbies and spoke of his enjoyment of the dances where she volunteered. Paul never missed a dance and he was always the last person off the dance floor.

[101] Gisele took Paul to hockey games where he could walk into the stadium and use the ramp or the stairs. Paul could navigate through the crowds and sat in a regular seat. If Paul needed to go to the washroom, she helped him up the stairs, but he went to the bathroom on his own. He stayed at the game until the very end.

[102] If Gisele looked after Paul in the evening, her only real duty was to administer his eye drops. Paul was very meticulous about this. They played cribbage and Gisele described Paul as a “master of the game”.

[103] Gisele would occasionally stay overnight if Larry and Beth were away. Sometime in 1995-96, the Boones secured some special needs funds to pay for assistance with Paul’s care. Gisele was paid an hourly rate to stay with Paul. Gisele did not encounter any issues when looking after Paul. She assisted him with his socks in the morning and with the final touches of his shaving. Paul was independent and could stay alone for a short period of time. She never witnessed any change in his abilities prior to 2010.

[104] She was aware that Paul had fallen on ice at home in February of 2010 and he had required physiotherapy. She was not aware of any other falls, nor did she witness any.

After October 2010

[105] Gisele was aware that Paul had a fall while staying at Lavonne and of his subsequent hospitalization. She saw Paul on his return to the Loeb Centre at the end of January of 2011 and she described it as if he had “not missed a beat”. Paul was not as strong; he was a bit slower and he had to be reminded to use his walker. The walker had been requested by the Loeb Centre. Paul could use the washroom on his own.

[106] Gisele had an opportunity to observe him all day. In her view, Paul felt safe enough to maneuver around without a walker. Staff had to insist that he use it, even though they did not think he needed it. Paul was happy to be back at work because structure and routine made him happy.

After February 11, 2011

[107] Gisele visited Paul at Saint Vincent’s rehab centre. She observed him to be quiet and withdrawn; his spark was gone. Everything changed. He could not do anything other than feed himself.

[108] Paul now required two people for almost all aspects of his care. There was a change in Gisele’s relationship with Paul. She used to be his buddy, now she was involved in his intimate care. She felt that Paul was embarrassed by this. After Paul went home in April of 2012, she returned to stay with him once the Boones resumed their Thursday night outings. She still tends to Paul bi-weekly. Her friend and co-worker, Anne Marie Bloom, stays with Paul on alternate weeks.

[109] Gisele described all the help she must now provide to Paul along with the PSW. Paul still wants to use the washroom and he must be reminded to use his diaper. She has occasionally stayed with him overnight for a few days and she described the process of getting him into bed, changing his diaper and cleaning him. She described the morning routine in similar terms as Beth.

[110] Paul is back at the Loeb Centre and Gisele continues to observe him there. He is there for a shorter day. Paul continues to be involved in other activities, including hockey games, bowling and the Loeb dances when she can take him. Paul is dependent on her for all these activities. If he is out for a long period of time, Paul needs to be double diapered.

[111] A couple of his co-workers and friends at the Loeb Centre have passed away and now Paul says that he wishes that he was “six feet under”. Gisele described Paul’s relationship with his father and how they used to do things together. That has changed: now Larry’s a caregiver too. Gisele described Beth as putting Paul’s needs before her own.

[112] Gisele said that the demands of Paul’s care are starting to take a toll on all of them. Paul always requires two people to attend to his needs. She does not know what would happen to Paul if something happened to his parents.

Gisele’s Cross-Examination

[113] Gisele had no recollection of a fall on the floor in the cafeteria in July of 2010. When shown Beth’s note of October 2010, Gisele replied that she had not been told that Paul was less steady on his feet. She had no recollection of a walker or other wheelchair prior to October of 2010. She was surprised to learn that a walker may have been recommended in May of 2010.

[114] Gisele was also surprised to learn of the documented falls. This information did not change her opinion about Paul’s mobility. She never observed any problems with Paul moving around with the walker at the Loeb Centre. It was her opinion that he was not going to need it for long. She disagreed with the suggestion that Paul needed a walker to prevent him from falling. She believed he needed the walker to help him walk; to build up his strength. Although she only observed Paul for nine days, she saw progress.

Anne Marie Bloom

[115] Anne Marie Bloom (“Anne Marie”) is Gisele’s work colleague at OCAPD and she has worked with Paul since 1998. She made many of the same observations as Gisele and she has also spent time looking after Paul in his parents’ home. She corroborated the evidence given by Gisele with respect to Paul’s functioning both before and after the incident in issue. She never observed Paul to fall, trip, or stumble prior to 2010.

[116] Anne Marie described Paul’s work activities at the Loeb Centre, which included paper sorting and the use of a shredder. Paul never needed any assistance. She described him as “quick as a whip”. Any injury would have been recorded in the log notes and none were reported.

[117] She described Paul’s use of the walker after his return to the Loeb Centre in January 2011 as being necessary in the event that someone bumped into Paul. She said Paul did not use it half of the time as he just got up and walked. The staff only assisted Paul with his tray in the cafeteria and helped cut his food.

[118] She discussed Paul’s use of a commode chair to go to the washroom. Paul required the transfer disk to transfer from his wheelchair to the commode. Since Paul is diapered, the diaper must be removed. After Paul uses the commode, staff must transfer him onto to the bed provided by the Boones to put on a fresh diaper. Two people are necessary to perform these functions.

[119] According to Anne Marie, too many staff complained of hurting their backs during these transfers. As a result, Beth instructed them not to use the commode anymore. In July of 2019, the Loeb Centre required a further occupational assessment before they would attempt to use the commode again.

[120] Anne Marie believed that Paul continued to attend the Loeb Centre until the COVID-19 pandemic forced its temporary closure, but she had already left by that time for another work placement.

[121] Anne Marie observed a change in Paul’s demeanor since the incident. She concurred with Gisele Thibodeau’s observations about the change in the relationship between Paul and his parents and how his current condition is affecting their lives.

Anne Marie’s Cross-Examination

[122] Anne Marie confirmed that the Loeb Centre had insisted that Paul use a walker once he returned from rehab in January 2011. This was to prevent him from falling in case he got bumped. Once Paul returned in April of 2012, he used a manual wheelchair and he generally needed someone to push him around.

Paul’s attendance at the Rehab Centre in 2010 - 2011

Michelle Morin

[123] Michelle Morin is the physiotherapist who treated Paul between December 6, 2010 until the end of January 2011. She was qualified as a participant expert. She recalled treating Paul and she went through her notes in detail. Paul was assessed upon admission and progress notes were taken. A treatment plan was developed to address his time at the rehab centre. Ms. Morin worked along with the occupational therapist, Monica Robichaud.

[124] Ms. Morin assessed Paul’s mobility in completing a variety of activities. He was independent in some areas but required some assistance with transfers from the bed, in the shower, and on the toilet. Paul required moderate to minimal assistance with ambulating with a walker; essentially to slow him down.

[125] Ms. Morin used a tool called the Clinical Outcome Variable to formulate goals. Paul’s goal was to walk independently at home and at work. With respect to “ambulation”, the assessment at admission was a score of 2. This indicates that one-person continual assistance is required. The goal score was 5, namely being independent with a walker. She did not address the need for a wheelchair as this was up to the occupational therapist.

[126] Ms. Morin said Paul tended to walk too quickly when he was using the walker and speed control was the concern. She described how various walkers can be customized for the individual patient. She was impressed with Paul’s progress with the walker in terms of endurance. Her progress notes of January 4, 2011 disclose that Paul can walk close to 400 meters before needing a rest; he had made “significant improvement”.

[127] He was discharged having met his goals: being able to walk independently at home and at work with a four wheeled walker. There was no documented assessment of Paul’s ambulation without a walker.

Michelle Morin’s Cross-Examination

[128] Ms. Morin said the use of a walker has a safety component, but it depends on each person. A walker can be used to prevent a fall but that is not its only purpose. It can be used to assist in moving from one location to another efficiently.

Monica Robichaud

[129] Ms. Robichaud is an occupational therapist and was qualified as a participant expert. She was part of a multi-disciplinary team and worked along the physiotherapist, Michelle Morin, in assessing Paul after his discharge from the hospital in November 2010.

[130] In her initial assessment, Ms. Robichaud scored Paul’s function in different areas on a scale of one (requiring total assistance) to seven (independent within normal limits). She described how this scale permits a more precise picture of a patient’s functioning. The initial assessment includes a statement of Paul’s goals: namely, a return to his previous level of independence and to be left alone for short periods of time at home. A treatment plan was then developed to attain these goals.

[131] She attended at the family home and made certain observations. Ms. Robichaud recommended that Paul make use of the wheelchair in the basement.

[132] Ms. Robichaud noted that Paul could walk without a walker, but he would be at risk. She had no concerns with his home environment and no concerns with his home care.

[133] Her progress notes of January 12, 2011 describe Paul as being very rigid in his routine. He could ambulate with a walker, but Paul often forgot to take it. She did not recommend the use of a wheelchair. Her discharge summary reports that Paul had achieved his goals. He was assessed as being independent in most areas or requiring some supervision in dressing, namely with putting on his shoes and socks.

Monica Robichaud’s Cross-Examination

[134] Paul’s initial assessment was reviewed at some length and Ms. Robichaud agreed that Paul required some assistance with most of his activities of daily living. Some of these, namely for lower dressing, required considerable assistance from his parents.

[135] Ms. Robichaud was unwilling to say that the purpose of the walker was to prevent Paul from falling. She said it could be used for endurance or as an extra measure of balance. She attributed Paul’s forgetful use of the walker to his cognitive disability. She would have recommended the use of a wheelchair if she thought that there was a big risk of his falling. She also prescribed a reaching device but did not agree that this was for safety reasons.

[136] Ms. Robichaud concluded that Paul had met most of his goals upon discharge, and Paul was independent with a walker. She agreed that Paul had to modify his routine to adjust his functioning and that he had to use assistive devices for his safety.

[137] In re-examination, Ms. Robichaud confirmed that she did not indicate that Paul would eventually need a wheelchair. His condition had improved upon discharge.

Services provided since April 2019

Angela Vanessa Christian

[138] Ms. Christian is Paul’s case manager. She is an accredited social service worker and described her role as a case manager as looking at and determining a client’s present and future needs. Ms. Christian then recruits professionals to meet those needs. While a case manager can often have a short-term role, a case manager can also continue to have a role throughout a person’s life.

[139] Ms. Christian was introduced to the Boones by their lawyers in the Spring of 2019. The Boones were very receptive to her assistance. She quickly determined that Paul needed 48 hours of care per day, or two people, 24 hours a day. She was aware that Beth and Larry had provided most of that care, supplemented by PSWs attending in the home.

[140] She recommended an occupational therapy assessment to be followed by a physiotherapy assessment. She believed that this would likely involve continued assistance by a physiotherapy assistant or an occupational therapy assistant. She also recommended a psychological assessment for Paul and his family. She thought Paul’s wheelchair needs had to be properly assessed and that his short and long-term respite options needed to be considered.

[141] Ms. Christian anticipated his long-term needs. If Paul was unable to remain at home with his parents for whatever reason, she would look for a group home that provided a comparable home environment.

[142] In terms of occupational therapy, Ms. Christian observed that Paul was using a wheelchair, but the chair did not meet his needs. She referred him to Donna Matheson, an occupational therapist who became involved in June of 2019. There was a subsequent referral to a physiotherapist.

[143] Ms. Christian discussed the need for PSWs. She said that Paul currently requires two-person assistance for diaper changes, personal care and companionship care. The publicly funded PSWs currently in place are limited to 21 hours per week. She said this was insufficient and repeated that he needs 48-hour care daily.

[144] Ms. Christian introduced additional PSWs to assist the family. There were some delays due to the COVID-19 lockdown, but everyone is following the appropriate pandemic guidelines.

[145] Her first priority was occupational therapy, followed by physiotherapy. Once these assessments were in place, the appropriate assistance would be recruited. The COVID-19 situation created delays.

[146] Ms. Christian identified an occupational therapy assistant, Matthew Zachariah, who commenced his duties in August of 2020. He has been teaching Paul how to use an iPad, in addition to trying to optimize Paul’s ability to self-direct, and accompanying Paul in community-based outings. He attends for a four-hour period, two times a week.

[147] A physiotherapy assistant, Henry Du, was recruited in September 2019. He focuses on transfers and personal care with the goal of strengthening Paul’s lower limbs. Paul has made small incremental improvements, but in Ms. Christian’s view, this did not impact the need for 48-hour care.

[148] At present, the physiotherapist and physiotherapy assistant are attending three times per week and this is discussed in greater detail in the evidence of Paul’s current physiotherapist, Isabelle Proulx.

[149] With respect to the PSWs, they provide a companionship role and they currently attend three evenings per week between 5:30 p.m. and 10:30 p.m. There is one PSW at a time. Larry or Beth are still involved. Ms. Christian is looking to introduce another PSW between 1:00 p.m. to 5:00 p.m. to provide companionship for Paul and some respite to his parents.

[150] Ms. Christian’s understanding is that the Loeb Centre remains closed but updated occupational therapy and the physiotherapy assessments would be required before Paul can return.

[151] Ms. Christian recommended that Paul be assessed by a speech language pathologist to assist with him with his speech and issues with his swallowing. She anticipates that ongoing treatment or involvement will be required following an original assessment.

[152] As for her own time, Ms. Christian spent a lot of time with the Boones at the beginning: on average three to five hours a week. She estimated a need to provide ongoing case management in the form an in-person, 2 1/2-hour meeting every six weeks. An additional one to two hours per week would be required to monitor the services being provided.

[153] Her hourly rate is $109.24 which is below her normal private rate in the range of $120 to $140.

[154] Ms. Christian estimated that the cost of occupational therapy and travel would depend on the service provider. She also indicated that the rehab assistant rates currently being charged are comparable to the market rate.

[155] According to Ms. Christian, PSW services typically cost $32 per hour plus HST. HST is being waived in this case because Paul is already receiving publicly funded PSW services from the LIHN.[^1] The COVID-19 pandemic has created a great demand for these services and rates will likely increase.

[156] In the long term, Ms. Christian sees Paul being placed in a group home. His needs will remain unchanged. He will continue to need additional services even if he is in a group home. He will need to be looked after 48 hours a day, seven days a week, permanently. Ms. Christian said that a wheelchair will not affect Paul’s needs for 48-hour care.

Angela Christian’s Cross-Examination

[157] Ms. Christian confirmed that she continues to be involved in managing the services on an ongoing basis. She agreed that she did not conduct a clinical or physical assessment. Some things were obvious from the beginning just by looking at Paul and from information received from the family. She expected others to conduct their own assessments, namely the occupational therapist and the physiotherapist.

[158] Ms. Christian agreed that she would defer to a speech language pathologist as to whether those services would be required.

[159] Ms. Christian said it was important for her to know how Paul functioned before the incident and that she obtained this information from the family. She was unable to say what Paul’s progression would have been but for the incident. She deferred this to a medical professional.

[160] Ms. Christian repeated that Paul requires 48-hour care. When it was suggested that Paul did not require two-person care when he is sleeping, she replied that this was necessary in the event of an emergency. She would not agree that one person would be enough if they had access to 911.

[161] Paul has always lived with his parents. She agreed that, prior to 2011, Paul could not live alone and that his long-term needs were always going to be a problem. The difference is in the level of care now required.

[162] In re-examination, Ms. Christian repeated that Paul’s need for two-person care presents obstacles in a search for a suitable home. There are also significant waitlists and the process is now delayed by COVID-19.

Donna Jean Matheson

[163] Ms. Matheson is the occupational therapist who assessed Paul and she was qualified as a participant expert. Ms. Matheson was brought in by Ms. Christian in May of 2019. She was aware that Paul was receiving limited PSW assistance from the LIHN.

[164] Ms. Matheson interviewed the family and determined Paul’s needs and priorities and noted the supports he was receiving. While she observed that the family was managing well, she concluded that this was a complex case and that Paul required a lot of help.

[165] She learned that the Boones had developed a lot of strategies to deal with Paul and she believed that these needed to be respected. She concluded that the care being provided by the parents was not sustainable given their age.

[166] Her first priority was seating and securing an appropriate wheelchair for Paul. The second priority was identifying additional supports with respect to Paul’s care.

[167] Ms. Matheson determined that there are very few things Paul can do on his own. In terms of wheel-chair mobility, Paul can self-propel 10 to 15 feet using his hands and feet. He needs assistance for all other activities. He can never be left alone. She assessed him as requiring two-person care 24 hours a day.

[168] Paul spends 70% to 90% of his day in a wheelchair. He also has a customized blue chair in the living room. She described the challenges in finding an appropriate wheelchair for Paul. Ms. Matheson needed a physiotherapy input. They attempted two different wheelchair systems and four to six iterations of each one. COVID-19 caused a two-month delay. She believes they have now found a wheelchair that meets Paul’s needs.

[169] Ms. Matheson’s second priority was to look for increased support for the family. The Boones were doing everything except for the 21-hour weekly PSW care that was publicly funded. They got occasional assistance from Anne Marie Bloom and Gisele Thibodeau. She described Beth as very resilient. She said if neither of the parents would be available, two PSWs would be necessary.

[170] Ms. Matheson said there is a significant difference between publicly funded and private PSW services. Right now, there are PSWs coming in from 5:00 p.m. to 11:00 p.m., three nights a week. Anne Marie and Gisele are there on the 4th night. These additional PSWs were not put in place until August of 2020 because Larry and Beth wanted to take things more slowly. The COVID-19 pandemic interrupted plans to expand these services. Physiotherapy treatments commenced in the Fall of 2019.

[171] Ms. Matheson attended at the Loeb Centre to observe Paul’s transfer from the wheelchair, on to the commode and onto the bed. A physiotherapy follow-up has not been possible due to COVID-19. She says it takes a minimum of half an hour to transfer Paul to a commode and then diaper him. It is her understanding that the Loeb Centre will not allow Paul to return until this further assessment is complete.

[172] Ms. Matheson said it would be great to have a toileting regime in place, but she would defer to a urologist for their opinion.

[173] Ms. Matheson has estimated that Paul would require 50 to 60 hours of occupational therapy for the first year. Once strategies are in place, she would consult on a periodic basis to assess his needs. This would involve 12 to 15 hours per year.

[174] Ms. Matheson described the role of a rehab support assistant, which is a support to the occupational therapist, the physiotherapist or the speech language pathologist. This permits the professional to offload some of the activities in a more economical fashion. A rehab support assistant is not a defined term. These assistants work under a designated professional to implement treatment goals.

[175] In this case, the rehab support worker is Matthew Zacharias. He was brought in because Paul is reported to be more withdrawn. While Paul still engages in some activities, Paul is depressed, and the psychologist has recommended a rehab assistant for this purpose. They are identifying activities that Paul can engage in while in a wheelchair.

[176] Ms. Matheson recommended that a speech language pathologist become involved. She estimated that six treatment sessions would be required for a total of 12 hours. She felt that strategies could be implemented within that time. She recommended that the rehab assistant be in place two times per week for four to five hours each time. This would be an ongoing need as Larry and Beth will be less able to provide care in the future.

Donna Matheson’s Cross-Examination

[177] Ms. Matheson agreed that the Boones had done an impressive job between 2012 and 2019 in caring for Paul. Paul had returned to several activities, but based on what she was told, the level of engagement was not the same. Moreover, the service and care being provided by Larry and Beth was not sustainable given their age.

[178] Ms. Matheson agreed that an assessment regarding any possible alterations to the home would be helpful and that modifications to the main floor bathroom could ease Paul’s care needs. When questioned about her recommendations about developing communication strategies, she deferred any opinion on that topic to a speech pathologist, as this was outside her area of expertise.

[179] Ms. Matheson did not believe that Paul could propel himself a long distance in a wheelchair because wheelchair use requires physical ability and cognitive ability.

[180] When asked about an electric wheelchair, Ms. Matheson said a certain level of cognitive ability is required. There are also weight issues with respect to an electric wheelchair, but she conceded that it could be an option. In her view, an electric wheelchair would have no impact on Paul’s needs. It would eliminate the need for somebody to push his chair, but someone would still be required to monitor Paul’s use of it.

[181] In re-examination, Ms. Matheson repeated that transfers to a commode, to a wheelchair, to a bed and changing an adult diaper were all within her area of expertise.

[182] With respect to bathroom renovations, Ms. Matheson said that this is up to an accessibility expert.

Isabelle Sylvie Proulx

[183] Ms. Proulx is Paul’s current physiotherapist and has been treating him since December 3, 2019. She was qualified as a participant expert.

[184] Ms. Proulx first observed Paul’s transfers onto a bed. She noted his reliance on his upper extremity for strength. One of her goals is to increase his lower extremity strength. She witnessed a two-person transfer. While Paul would continue to need two people to assist him with his transfers, her goal was to make the transfer easier for Paul and decrease his fatigue.

[185] Ms. Proulx observed Paul’s limited mobility. Two persons providing maximum assistance were required to get Paul to stand with the four-wheel walker. He cannot step forward or back. He can slide his foot a bit.

[186] From December 2019 to March 2020, Ms. Proulx participated in joint sessions with the physiotherapy assistant to develop a routine of exercises to build up Paul’s trunk endurance and extension. Paul can stand and hold a position for about 10 seconds, but he fatigues quickly.

[187] They observed minor incremental changes, but given Paul’s disability, they considered this a “big deal”. They believe his condition had been optimized and he was able to move to a maintenance program. Paul cannot do the exercises on his own, he requires manual handling and verbal cueing. She does not expect this to change.

[188] Paul has required two one-hour sessions per week with her and the assistant. There is another one-hour weekly session with the assistant alone. In total, he has three hours per week of physiotherapy.

[189] Ms. Proulx believes that once his physiotherapy needs have been optimized, his care needs will remain the same. She indicated that the rehab assistant cannot be alone to provide services for Paul. He needs another person in attendance; either a parent or a PSW. It is not safe otherwise.

[190] The plans to start the maintenance program were interrupted by COVID-19 between March 2, 2020 and July 6, 2020: a four-month break. She returned to conduct her own assessment and observed significant deconditioning of Paul’s ability. She helped to return Paul to his prior status. The rehab assistant is now attending three times per week to build up Paul’s endurance. Six months later, this can be reduced to two times per week. She describes this as a minimum. These are one- hour sessions. Three times per week would be optimal.

[191] Ms. Proulx anticipates spending 10 to 12 hours yearly in order to conduct quarterly assessments and reassessments. She would also supervise any change in the physiotherapy assistant. Ms. Proulx does not anticipate any treatment outside of the home nor does she anticipate any change for the foreseeable future.

[192] Ms. Proulx did not have an opportunity to attend at the Loeb Centre to have a better understanding of the issue there. She said Paul is very compliant and always tries to do his best. She and her assistant must be very clear and provide him with a lot of verbal cueing when providing him with treatment.

Isabelle Proulx’s Cross-Examination

[193] Ms. Proulx did not have any direct conversations with the Loeb Centre, but it is her understanding that the Centre would not allow Paul to return until he had a further physiotherapy assessment. Paul had not been in attendance when Ms. Proulx began treating him, even though the Loeb Centre was still open.

Dr. Tammy Ricci

[194] Dr. Ricci was qualified to give expert evidence in the area of clinical and rehabilitation psychology. She conducted her assessment of Paul on March 3, 2020 when she met him and his parents.

[195] Dr. Ricci described her clinical interview with Paul as semi-structured. Paul’s cognitive difficulties made the interview difficult. Various psychometric tools had to be adapted as they could not be used in a standardized fashion.

[196] Dr. Ricci reviewed her understanding of Paul’s history and his level of his independence prior to the incident. Dr. Ricci was aware of the progress Paul made after attending the rehab centre in 2011.

[197] It was Dr. Ricci’s understanding that Paul could no longer control his bladder and bowel functions quickly enough. He also gained a lot of weight. His parents made some adaptations to the home and they were receiving three hours of PSW care, seven days a week.

[198] Dr. Ricci learned that Paul was experiencing depressive moods. He had what she described as suicidal thoughts; words to the effect that he would be happier if he was in his grave. He had been prescribed antidepressants in 2013 but these had been discontinued in 2015.

[199] Dr. Ricci described the psychological impact on Paul of finding himself confined to a wheelchair and wearing diapers. In his own mind, Paul wants to function the way he used to. For example, he continues to want to use the bathroom.

[200] Dr. Ricci described persons with developmental delay as just wanting the current situation to end. She understood that Paul was suffering from more fatigue and that his parents and others had to draw words out of him. She was not sure that Paul could commit suicide; she did not think he was physically capable of it. Dr. Ricci observed that Paul was able to get back on his feet in the past.

[201] Things that formerly brought joy to Paul no longer do so. Dr. Ricci diagnosed a major depressive disorder as a result of the significant loss of function after 2011. In her view, there was nothing in the records to suggest that he would have gone on to develop this depressive disorder without the incident taking place. Her prognosis was guarded to poor.

[202] Dr. Ricci said that Paul’s lack of insight would present a struggle for traditional psychological therapies. She was very guarded in providing her opinion. If left to his own devices, she believed that Paul’s depression would get worse.

[203] Dr. Ricci described Paul as being very concrete. She indicated how difficult it is for him to relate to vague terms like depression. Although she recommended behavioural treatment, she was not sure that this would be successful.

[204] Dr. Ricci did not complete a battery of psychometric testing. She could not give much weight to the measures because she was sure that Paul understood the questions. She diagnosed his anxiety as mild and his depression as moderate.

[205] Dr. Ricci concluded that behavioural therapy could result in a reduction in his suicidal ideology. She did not want to be pessimistic, but she was not sure how that would work. In her words: “It is going to be tricky.”

[206] Dr. Ricci said that the rehabilitation therapists and PSWs currently in place could help Paul to implement strategies with respect to his mental health. When he has suicidal thoughts or negative thoughts, they could encourage him to refocus and manage his mood.

[207] Dr. Ricci also made a recommendation for family therapy so that the parents can go back to being parents instead of caregivers. She did not go into that with the Boones. She felt it would be up to someone else to assess that need and the duration of that intervention.

Tammy Ricci’s Cross-Examination

[208] Dr. Ricci agreed that Paul had not been referred to her by a medical professional but by his counsel to assess his depression and to recommend treatment for the purposes of this litigation. Dr. Ricci confirmed that she conducted a one-time assessment with no follow-up. She conceded that there could have been some benefit to being retained earlier.

[209] Dr. Ricci agreed that a psychological assessment assesses a point in time. While Paul is uncomfortable with strangers, she believed that she developed a rapport with him because Dr. Ricci herself uses a wheelchair. Dr. Ricci agreed that assessing a person with cognitive disabilities takes more time. She declined to say whether a second interview would have been helpful.

[210] Dr. Ricci did not conduct any collateral interviews. She was aware that Paul’s use of anti-depressants ended in 2015 and that this coincided with his use of the sleep apnea machine. She was unaware that this led to reports of improved mood.

[211] Dr. Ricci could diagnose Paul’s depression, but she acknowledged that it was difficult to appreciate the depth of that depression. She could not diagnose its severity. At a minimum, Paul’s depression was moderate.

[212] About family counselling, Dr. Ricci agreed that the family has adapted over nine years and not much had changed.

Carol Bierbrier

The Life Care Plan

[213] Ms. Bierbrier was qualified as an expert in rehabilitation and life care planning. She obtained her qualifications as a Life Care Planner in 2006: one of the first Canadians to obtain this certification.

[214] She met the Boone family on October 26, 2017 and reviewed the medical information. She consulted others who knew Paul. She had information from the family physician, and she obtained information with respect to the residential services available through an organization called Ottawa Foyer Portage. This agency identifies public and private resources for the developmentally delayed population. She had the medical brief, the clinical notes and records and the CCAC records.

[215] Ms. Bierbrier obtained Paul’s history from his parents. She observed the home environment and she conducted a detailed interview. She observed that Paul required a lot of assistance with every aspect of his daily care. She concluded that he needed 24-hour care and two-person care for any transfer or anything that involved movement. He would require around the clock care by two people. Maximum assistance would be required whenever there would be a load bearing function.

[216] Ms. Bierbrier determined that, prior to the incident,

• Paul was mobile

• he attended the Loeb Centre

• he had a personality

• he enjoyed routine

• he needed little structure or guidance

• he was very functional

• he was deemed independent

• he could use Para Transpo

• he could be left alone for short periods of time

• he needed minimal assistance in putting on his socks and shoes and in the bathroom.

[217] These determinations are well supported by the evidence. Ms. Bierbrier reviewed Paul’s progress at the rehab centre between December 2010 - January 2011. He was expected to return to baseline. There was no incontinence, and aside from using the walker for external support, Paul was walking.

[218] She observed significant changes after the surgical event of February 4, 2011:

• Paul has reduced mobility

• he has bladder control issues and wears incontinence briefs

• he developed a pressure sore that took a long time to heal

• he is very depressed

• he requires maximal assistance on transfers

• his subsequent participation at the Loeb Centre was reduced

• while he suffered from initial paraparesis, he did regain some strength

• the development of pressure sores remains a vulnerability

• he now requires a wheelchair

• he requires an air pressure mattress

• the parents had already installed an elevator and made other changes to the home

[219] These observations are also well supported by the evidence. Ms. Bierbrier discussed how the preparation of a life care plan focuses on the extraordinary costs; those that are now incurred as a result of the incident. For example, Paul always needed a grab bar in the shower, but now, he needs a roll-in shower.

[220] Ms. Bierbrier next prepared a list of recommendations and determined their cost and their frequency. Once she has completed the total cost of the care requirements, that figure is given to an actuary to arrive at present-day values.

[221] In developing her life care plan, Ms. Bierbrier consults with the treatment providers, reviews the notes and records, and depends on her own expertise. As to the cost of various services, she has a database of what resources are available and she takes an average of three hourly rates from the Ottawa area to determine the cost of those services. At the time of her initial assessment, Paul had very little involvement with treatment providers. After her assessment, she found out that Paul was assigned a case manager as well as an occupational therapist and a physiotherapist. There was a consultation with Dr. Ricci, and rehab support services had been put into place.

[222] Her life care plan was updated to include recommendations from Dr Ricci and to reflect the evidence of Donna Matheson and Isabelle Proulx.

Medication and Assistive Devices:

• No claim is made with respect to items 1,2,3 and 4 as these are being funded by ODP.

• Item 5: The cost of a low-pressure mattress. It needs to be replaced every five to seven years. The unit cost is $5,500 and the annualized cost is $916.67. This is an extraordinary cost due to Paul’s inability to move in bed and the need to avoid and treat pressure sores.

• Item 6: Maintenance for the mattress is costed at $500 annually for two service calls and parts.

• Item 7: The electric hospital bed. Paul already has a bed, but the maintenance costs are $350.00 per year for service calls and parts.

• Item 8: The ceiling track for the lift device. One is in place, but an allowance was made for its replacement in the likelihood that Paul will have at least one move in his lifetime. At present, Paul can use the transfer disc. The ceiling track is a backup system when he can't use the disc; for example, if he became too weak from the flu. Even if a ceiling lift is used, two people are required for transfers.

• Item 9: The cost of slings for use with the ceiling track. Two slings are required as they must be laundered, and these should be replaced every five years. The annualized cost is $160.

• Item 10: The batteries (4) for the motor used in the lift device. These cost $130 and must be replaced every two to three years for an annualized cost of $52.

• Item 11: The motor strap used with the lift device must be replaced every five years at a cost of $40.

• Item 12: The motor for the lift device must be replaced every 10 years for an annualized cost of $350.00

• Item 13: The cost of a manual wheelchair, which requires replacement every five years. The amount was revised to reflect the cost of the wheelchair currently in use. This is partly funded by the ADP program. The revised unit cost is $4524.99. The seating would have to be replaced every 2 1/2 years at a cost of $2428.70. Wheelchair maintenance must be included for a total annualized cost of $1755.98 for the chair, seating, and maintenance.

Ms. Bierbrier originally made no provision for an electric wheelchair. She said the ADP program will fund only one chair and that the manual chair would be considered the primary chair. She said that an electric wheelchair will last 7 1/2 years on average. The technology is changing. An electric wheelchair was costed at $23,305.00. She said it would require maintenance at $1475.80 per year. The seating costs are lower but must be included. She arrived at an annualized cost of $4426.26 for an electric wheelchair, its maintenance and cushion replacement.

• Item 15: The Sam Hall Turner, otherwise known as the pivot disk. Paul currently has one but will require at least one more replacement over his lifetime at a unit cost of $849.

• Item 16: A Molift trolley, which is another lift device. Paul has one but will require one lifetime replacement at a unit cost of $1,500.

• Item 17: Ocean commode. It must be replaced every three years for an annualized cost of $300.00.

• Item 18: Maintenance for the commode is $150.00 annually.

• Items 19 and 20: Protective ointment and skin care creams to prevent pressure sores from developing. The annualized costs are $207.45 and $119.64.

• Item 21: Compression socks. Paul requires 2 new pairs every six months. While she considered this is an extraordinary expense, she acknowledged Paul's previous use of these socks due to problems with his lower limbs. The annualized cost is $242.92.

Professional Services:

• Item 22: Includes her recommendation for occupational therapy, including travel time, for an annual cost of $2206.08. She said that occupational therapy services could be delivered at home or in the sheltered workshop or indirectly by telephone.

Her revised recommendations reflect the evidence of Donna Matheson. Ms. Matheson’s recommendations included an initial intensive session of 40 to 80 hours of occupational therapy after which occupational therapy would revert to the model that Ms. Bierbrier set out in her plan. This would result in an additional fixed cost $7353.60 and an annualized cost of $2206.08.

• Item 23: Physiotherapy. Ms. Bierbrier’s recommendations were updated in view of the evidence of Isabelle Proulx. Ms. Proulx also recommended an initial intensive period of six months when treatment would be provided twice a week. Ms. Bierbrier calculated a total of $6703.16 as a one-time cost.

An on-going physiotherapy assistant was recommended at three times per week resulting in a cost of $11,520 annually. The physiotherapist would now provide physiotherapy and monitoring services for 12 to 24 hours a year at an annual cost of $2,354.94.

• Item 24: Case management needs were costed for a regulated health professional at an annualized cost of $2,522.34.

• Item 25: Family counseling was recommended by Ms. Bierbrier, which was supported by Dr. Ricci. The cost was based on the services being provided by a social worker. The total cost of 12 to 24 sessions is $4,995.00.

• Item 26: The cost of a psychological assessment and counselling to assess strategies and deal with Paul’s depression. She made provision for 15 sessions for a total cost of $4,950.00.

• Item 27: Travel for counselling services came to $210.38.

• Item 28: Dr. Ricci recommended a rehabilitation support worker at two visits per week (8 hours including travel) at a cost of $24,602.88 per annum.

• She included a new item, namely the cost of speech language pathologist to help Paul with swallowing issues based on the recommendations of Ms. Matheson. Ms. Bierbrier estimated a 3-hour one-time cost for an assessment and twelve sessions for a total cost of $1745.80.

Personal Care Services:

• Item 29: PSWs to provide personal care services, dressing, feeding, bathing, preparing meals and accompanying a client in the community. Paul will always require two people for various aspects of personal care. A unit cost at an hourly rate of $37.99 including HST[^2] was arrived at by taking the average of three hourly rates being charged in Ottawa. Initially, she calculated that Paul required an additional 12 PSW hours per day over and above the three hours that are being provided currently by the LIHN. She concluded that the parents could provide nine hours of nighttime care. Based on that scenario, the annualized cost is $166,396.20.

She assumed this cost would be applicable for five years to ten years. This model assumes that one of the parents is always present to provide some care as they were in the past. If she were to remove one parent from the picture to provide nine hours of care of night care, this increases the PSW needs to 21 hours per day, for a total annual cost of $291,193.35.

Ms. Bierbrier concluded that that there are two options for Paul once his parents can no longer look after him: 1) residing in an assisted living residence with an additional personal support worker or 2) entering a shared accommodation arrangement with one other person. The latter is a relatively new option. She did not consider the assisted living option as being appropriate as it is geared to a senior population.

In her view, the best option is shared accommodation. Under this model, offered through developmental services, two families get together and rent an accessible apartment. There's a long waitlist for publicly funded residences and Paul will have an additional challenge because of his mobility issues. Priority is given to people who have nowhere to go. Ms. Bierbrier allowed for the costs of one PSW to live in 24/7. (Item 37) She has not included the cost of a dwelling because that would need to be provided in any event.

The residents would share the cost of a modified van. She added that finding a live-in PSW would be very difficult at this time because of COVID-19.

If a shared accommodation was not possible, the plan would be to fall back on hourly rates for PSWs. She repeated that the shared accommodation would give Paul the best quality of life.

• Item 30: This is for additional PSW hours required 5 weeks a year if the Boones go on vacation. This cost is $15,955.80. The parents would have had to pay for one care worker if they went away; now they need two, and this is the cost of that extra person.

• Item 34: This item allows for one more change to the van at a cost of $22,700. This represents the extraordinary costs of modifying a van.

• Item 35: This is an estimate with respect to future home modifications. A reserve fund of $50,000 was set aside.

[223] In summary, Ms. Bierbrier said Paul’s greatest need is with respect to the PSW hours now required. She indicated that obtaining a live-in PSW is very difficult at present due to COVID-19, but, if things settle down, there is a 60 to 70% chance that PSW services could be obtained through an agency.

Carol Bierbrier’s Cross-Examination

[224] In cross-examination, Ms. Bierbrier acknowledged that she is trained as an occupational therapist and that she has no training in physiotherapy. She replied that her area of expertise overlaps with physiotherapy.

[225] She admitted that she is not trained as a psychologist. As an occupational therapist, she is trained to identify psychosocial issues. She agreed that she is not a family counselor and that she has no expertise in that area although she understands the issues. She agreed she has no expertise as a rehabilitation aide. She is not a physiatrist.

[226] She reviewed her accreditation as a life care planner and explained that a life care planner looks at the bigger picture as opposed to someone who provides treatment directly.

[227] Ms. Bierbrier confirmed that she did not speak to a family counselor nor did she ask a family counselor to conduct an assessment. As for Dr Ricci’s recommendation for family therapy, she agreed that this need is best assessed by a family therapist. She concluded that some hours would be reasonable given there would be caregiver burnout. When she met the Boones in October of 2017, they were expressing difficulty. They could no longer do the same things with Paul. They were overwhelmed and they were seeking help. Paul had changed.

[228] She was questioned about Dr. MacGregor’s identification of prior falls which she referred to in her own notes. While Paul was vulnerable to falls, Ms. Bierbrier noted that he returned to ambulation after each fall. Paul completed some physiotherapy and resumed his function. There was a significant fall in October 2010, a decline in function, but Paul had made an almost complete recovery.

[229] Ms. Bierbrier observed that Paul was discharged from rehab using a walker, but she learned that he was not using it. In her view, this represented a change in the moment, and it did not mean a long-term situation. She spoke to Ms. Bloom who was impressed by the way Paul was functioning.

[230] She agreed she has never had a patient with kyphoscoliosis although she did have some experience with similar patients in the past.

[231] She was referred to recommendations for personal care. She conceded that Paul always required 24-hour supervisory care which was provided by one of the parents. She repeated that Paul now requires 24-hour care by two people. While her original plan assumed that both parents would be providing overnight care, she always assumed an additional 24 hours of care.

[232] Ms. Bierbrier observed that Paul did not like disruption to his routine. As for the Loeb program, she felt that its future was uncertain since it was a publicly funded program, so she did not build its continued availability into her plan. She wanted to ensure that her plan provided for all of Paul’s necessary attendant care needs.

[233] With respect to PSW care, she agreed that this is not a mathematical calculation. If Paul leaves for an outing, a PSW provided through an agency cannot necessarily be sent away. A predictable schedule is required. Two persons are always required whether it is a Thursday night, when Anne Marie or Gisele are there with Paul or if Paul is in respite care.

[234] As for the rates that she calculated for the PSW services, she repeated that she was using average hourly rates based on her research.

[235] Ms. Bierbrier agreed that the cause and effect of the February 11, 2011 incident on Paul’s condition was best determined by the medical experts. She was satisfied that she had enough information to conclude there had been a significant change in Paul’s function and that he was vulnerable to future complications.

[236] She confirmed that an actuary had the expertise to determine lifespan.

Guy Martel

[237] Guy Martel is the actuary who provided the present value evidence. He was qualified as a litigation expert. He also testified about Paul’s mortality rate, and in doing so, he relied on the Canada Life Table prepared by Statistics Canada. That mortality rate is based on the entire population: males, females, persons who are in good health and persons who are not in good health or are disabled.

[238] Mr. Martel gave the present-day values of the various items set out in Carol Bierbrier’s life care plan and how these are calculated based on the relevant present value factors found at Exhibit 20. This evidence was not challenged.

[239] According to Mr. Martel, if a person is unable to manage the amount of a lump sum award, management fees will be incurred to invest those funds in order to accomplish the present values he calculated. The fees are determined based on the lump sum awards that may be awarded. He could provide that calculation after judgment.

Dr. Karen Earlam

[240] Dr. Earlam is a respirologist who began to treat Paul in August 2015. She was qualified to give an opinion as a participant expert in the field of respirology. From the records, she recorded a history of spina bifida, hydrocephalus, scoliosis and sleep apnea. She said Paul’s scoliosis could have an impact on his respiratory function, and she was following him on an annual basis. She found him difficult to assess. She tried to administer the pulmonary function test (spirometry) without success. In order to administer the test, the patient must give a good effort and must be capable of following instructions. She was satisfied that Paul’s cognitive problems prevented him from doing so.

[241] She did not find a good correlation between Paul’s scoliosis, the angle of his curvature and his pulmonary restriction. She concluded that he continues to have pulmonary restriction, but he is stable. As a result, she only sees him once a year.

[242] Treatment for persons with pulmonary restriction might include various therapies which include a Bipap machine, supplemental oxygen, physiotherapy or braces. Dr. Earlam described the severity of Paul’s condition as not being the worst and not being the best. She found it difficult to predict the effect of his scoliosis on his mobility.

[243] Paul was fitted with a Bipap machine in 2015 for his sleep disorder and sleep apnea and that is going very well. Dr. Earlam can download the data from the Bipap machine and there have been no issues with Paul’s adherence to therapy.

[244] Dr. Earlam was unable to say when things might get worse for Paul. It was hard for her to get a measure of Paul’s vital lung capacity. She has never observed any objective signs of pain.

[245] Paul attends the meetings with Dr. Earlam with his parents. She finds them to be very dedicated parents and she has come to rely on them for information.

Dr. Earlam’s Cross-Examination

[246] Dr. Earlam confirmed there were many challenges in conducting the testing of Paul since he does not speak to her. While Paul is at risk for respiratory problems, she considers him stable, and follows him once per year. She was unable to say if his condition would get worse, but she did not expect it to get better.

The Case for the Defence

[247] The Defence called a physiatrist, Dr. Anthony Burns, to support their “crumbling skull” argument. In separate reasons, I dismissed the entirety of his evidence.[^3]

Dr. Lynne Susan MacGregor

[248] On May 27, 2010, Dr. MacGregor assessed Paul on referral from the family physician, Dr. Fletcher. Dr. MacGregor was qualified as a participant expert. Paul attended the appointment with his parents. In her notes, she recorded that Beth told her that Paul had balance problems and that he never left home unaccompanied. Beth told her about a serious fall down some stairs where Paul had injured his shoulder. Beth reportedly told her that Paul had fallen about a dozen times in the previous year.

[249] Dr. MacGregor took a prior medical history and she learned of Paul’s surgery on his hamstrings as a child and the need for bracing which left him with some weakness in his lower limbs. She was aware that Paul suffered from seizures and glaucoma and that he had seen a respirologist. He also had an enlarged prostate. He suffered from of infections in his legs below the knee because of cellulitis.

[250] She conducted a physical examination which included a musculoskeletal assessment, an assessment of motor strength and a sensation assessment. Dr. MacGregor observed that his motor strength in his upper limbs was normal. His hip flexors were very weak. There was good strength at the knee. There was no strength or very little movement below the knee. She assessed this as way below normal. Paul could bring his knees up. He was assessed at grade 3. She said that an assessment at grade 4 to 5 is required for good ambulation.

[251] Paul had good reflexes and his straight leg raising was normal. She tested sensation because all nerve function has a sensory aspect. Paul had difficulty in providing reliable responses to the pinpricks. This was the first time she had assessed him, and she was unaware of his cognitive abilities. Given Paul’s inability to reliably tell her when something hurt him, the reliability of any testing was put in question.

[252] She described the sensory exam as less than stellar. She assessed proprioception by using a tuning fork. The result was poor, and she concluded that this was probably a long-standing problem.

[253] She observed that Paul has severe scoliosis. She concluded that his joint range of motion was acceptable and that he had a lower motor nerve problem. There was significant weakness around the feet and ankles, and this presented a risk of falling. She observed significant swelling around the ankles and shins.

[254] She recommended that a physiotherapist assess the lower limbs and that an occupational therapist look at the home. She obtained an x-ray and made a referral to a respirologist. She also recommended personal care assistance to give the parents a break. Paul was sent to look at braces and different types of walkers. She intended to see him again in six months. She considered Paul to be quite overweight and that lung function impacted his mobility. She had a lot of concerns about him falling.

[255] Her subsequent report of 2013 reviewed the results of the x-ray which revealed a “Cobb Angle” of 97 degrees. She described this as significant and described anything over 30 degrees as “huge”. By this time, Paul was in a wheelchair and there was no real significant change in her neurological assessment. She concluded that Paul was a poor candidate for ambulation.

Dr. MacGregor’s Cross-Examination

[256] In cross-examination, Dr. MacGregor admitted that she did not have the records from Paul’s rehab admission after his fall in 2010. With respect to a leg brace, it was her job to recommend one and it was up to physiotherapy to try it out. She said they would always call her if there was a problem, and no one got back to her. She was not sure what happened following the referral to occupational therapy. If the occupational therapist had any concerns, they would have contacted her.

[257] Dr. MacGregor testified that her examination lasted about 15 minutes. She had no recollection of observing Paul walk in the room and she did not know how he got onto the examining table. She did have a recollection of observing him walk to her office with his father and leaning on him.

[258] Dr. MacGregor was questioned at length about her note that Paul had fallen about a dozen times. She recalled being alarmed about the number and said that one fall was one too many. She agreed that the occupational therapist and the physiotherapist who treated Paul in 2010-2011 would be in the best position to assess his pre-incident condition.

[259] Dr. MacGregor was questioned at length about her neurological assessment. She confirmed that these tests are effort-based tests. The patient must understand the need to give their best effort. She was not sure of Paul’s cognitive delay.

[260] Dr. MacGregor was questioned as to how a person with a grade 0 ankle function would be able to walk. She was informed that Paul had been able to walk without a brace for 30 years. She reported that people can walk with a grade 0 in this area, but the person might have a floppy foot. It was a challenge to explain how Paul could walk given the results of her examination. There was no assessment of the stiffness of Paul’s ankles which might explain any absence of floppiness of the foot.

[261] Dr. MacGregor agreed that her comment about Paul being quite overweight was based on the size of his abdomen. She did not determine his body mass index. She agreed there was no measurement of weight and this was not really the focus of her assessment. She agreed that her statement that Paul was quite overweight was a misstatement on her part.

Carole Perreault

[262] Ms. Perreault has been employed at OCAPD for 30 years. She is the supervisor of two group-homes, and she was the supervisor who was responsible for Lavonne in October/November 2010 where Paul suffered the significant fall in October 2010.

[263] Ms. Perreault described the system in place to record their notes and observations and their maintenance on a regular basis. It was not disputed that these notes met the definition of business records within the meaning of s. 35 of the Evidence Act, R.S.O. 1990, c. E.23.

[264] Ms. Perreault said it is her practice to make notes as soon as possible after an event requiring notation. She recognized the note in issue as her own and that she had entered it in their “Danix” system.

[265] Ms. Perreault received or made a call to Larry Boone. The call was a follow-up after Paul’s admission to the hospital. In oral reasons, I ruled the statement was admissible for the truth of its content. The relevant section of the note reports that Larry Boone said the following:

Paul had been having quite a few falls at home in the last little while and they have needed to put up rails on the walls to facilitate movement within the home.

[266] In cross-examination, Ms. Perreault was asked about her conversation with Larry. From her memory, Larry was at home when he called, and Beth was at the hospital with Paul.

[267] Ms. Perreault was aware that Paul had had two falls in the past; one in 2008 and one in 2009, which led to his placement in a main-floor bedroom in October of 2010.

[268] Ms. Perreault was questioned as to whether Larry Boone was referring to falls at the Lavonne Centre in their conversation and she said that if the falls had occurred at Lavonne, she would have made note of it and she would have questioned it if it was not clear.

PART ll - DAMAGES

“Crumbling Skull” vs “Thin Skull”

[269] The Plaintiffs submit that, now that liability and causation are admitted, the Defendants must take Paul Boone as they find him, and, so far as money can do, put him in the same position he would have been but for their negligent conduct.

[270] The Plaintiffs argue that Paul’s claim is governed by the “thin skull” rule and that his pre-existing condition rendered him more vulnerable to the injuries he suffered which have left him functionally paralyzed.

[271] The Defendants maintain that the “crumbling skull” doctrine is applicable, and that Paul would have found himself in his current condition within five years of the incident, irrespective of any negligence on their part.

[272] A concise discussion of the thin skull rule and the crumbling skull doctrine is found in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at paras. 34 and 35:

34 ... The “crumbling skull” doctrine is an awkward label for a fairly simple idea. It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.

35 The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position. (Internal citations omitted)

[273] These principles are re-stated in Misko v. John Doe, (2006), 2006 CanLII 31300 (ON SC), 82 O.R. (3d) 535 (Ont. Sup. Ct.) and Misko v. John Doe, 2007 ONCA 660, 87 O.R. (3d) 517. At para. 22 of the 2006 decision, the trial judge observed the following:

22 Most importantly, the Supreme Court has made it clear that any pre-existing symptoms (the crumbling skull argument) have to be proven by the defendant on a balance of probabilities. If the defendant proves that as a result of a pre-existing condition, the plaintiff would have experienced certain debilitating effects, then the defendant is only responsible for those injuries that were occasioned by his negligent acts and not for that which was pre-existing and for which would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence.

[274] In determining what is a “material” or “measurable risk”, the Court of Appeal held in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, at para. 59, that “evidence of a vague possibility is not reasonable evidence of a material risk.”

[275] In a more recent decision, K.M. v. Marson, 2018 ONSC 3493, the trial judge held that evidence of a material risk, enough to trigger the application of the crumbling skull doctrine, must be “cogent, tangible and credible”.

[276] The Defendants argued that their evidentiary burden was not on a balance of probabilities. In support of that argument, the Defendants relied on para. 27 of Athey, in which the Court of Appeal said:

[h]ypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood… A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.

[277] This paragraph is found in the Court’s discussion of the contingencies that can be applied when assessing future damages which are incapable of proof on a balance of probabilities.

[278] I conclude that the Defendants confused the evidentiary test applicable in applying contingencies with their evidentiary burden to establish a factual finding in support of their proposed application of the crumbling skull doctrine (i.e., that there was a measurable risk that Paul Boone’s pre-exiting conditions would have caused him to become functionally paralyzed regardless of their negligence).

[279] The distinction between contingencies in assessing damages and the application of the crumbling skull doctrine is discussed by Corthorn J. in Rolley v. MacDonell, 2018 ONSC 6517 at paras. 301 and 397:

301 Nor would a modest reduction for general contingencies be duplication of the reduction, if made, for the application of the crumbling skull principle (Issue No. 4, below). The crumbling skull principle does not address the possibility that, from the date of valuation forward, the future care expenses will not be incurred.

397 For the defendant to succeed with her alternative position of ‘crumbling skull’, there must be evidence to support a finding that, prior to the collision, there existed a measurable risk [ ] that Mark would, regardless of the defendant’s negligence, have been detrimentally affected by his pre-existing conditions. If that risk is established, then it can be taken into account in reducing the overall award of damages. [Internal citations omitted]

[280] In Rolley, Justice Corthorn concluded that her application of the “crumbling skull” principle did not prohibit the application of a modest negative contingency to the damages assessed under costs of future care and future handyman services. Justice Corthorn then went on to consider the “crumbling skull” principle and was satisfied that the evidentiary burden had been met and reduced all damages by 25 per cent on the basis of that principle.

The Application of the “Crumbling Skull” Doctrine to this Case

[281] At trial, the Defendants sought to rely on the evidence of Dr. Anthony Burns to establish that Paul would have eventually found himself in the same condition that he is in today – wheelchair-bound and requiring two-person transfers to assist him throughout the day. They argued that Paul would have found himself in this situation within five to ten years of the incident.

[282] As noted at para. 247, I concluded that Dr. Burns’ expert opinion could not be given any weight; I excluded it in its entirety. Notwithstanding my exclusion of that opinion, the Defendants continue to advance a “crumbling skull” argument to limit Paul Boones’ damages. In doing so, the Defendants rely on some of the same evidence upon which Dr. Burns relied – namely Paul’s pre-existing conditions, the history of Paul’s falls, and the results of Dr. MacGregor’s examination in May 2010.

[283] As for his pre-existing history, Paul had suffered from several disabilities since childhood. These conditions persisted for nearly 30 years, yet Paul functioned independently for all that time. He was 47 years of age when this incident occurred. Apart from evidence with respect to several falls, there was no evidence of any decline, prior to this incident, in Paul’s ability to function independently.

[284] The history of the falls is problematic. While the cause of these falls is largely unknown, they are significant in number. The family physician made a referral to Dr. MacGregor in May of 2010 because of this history. Doctor MacGregor recorded a history of a dozen falls in her notes. Beth disputed that a history of a dozen falls was given to Dr. MacGregor. I find that Dr. MacGregor recorded what she had been told. I find that Beth’s strong advocacy for her son would not permit her to admit that Paul had been suffering from any balance problems prior to the significant fall in October of 2010; her evidence on this issue is unreliable. In October 2010, and in separate notes and conversations, both Beth and Larry acknowledged that Paul had been unsteady on his feet or had fallen quite few times at home. As a result of that unsteadiness, Beth and Larry extended the hand railings in their home.

[285] Regardless, the evidence reveals that Paul recovered after each fall, including the nearly fatal fall in October 2010 that left him hospitalized for two months and during which time he contracted MRSA. After two months of therapy, Ms. Robichaud concluded that Paul had met most of his goals upon discharge; namely, that Paul was independent with a walker. He had returned to his pre-accident condition.

[286] As for Dr. Macgregor’s evidence, I find that it does not support the “crumbling skull” finding sought by the Defendants. She conducted one 15-minute examination of Paul in 2010. Dr. MacGregor admitted that she had concerns about the reliability of her examination. Dr. MacGregor acknowledged that the occupational therapist and the physiotherapist who assessed Paul in January 2011 (Ms. Robichaud and Ms. Morin, respectively) were in the best position to assess Paul’s pre-incident function.

[287] For the Defendants to succeed with their argument on the crumbling skull doctrine, expert evidence in support of the requisite factual foundation was required. In the end, the expert opinion upon which the Defendants sought to rely in that regard was rejected by the court.

[288] The best evidence of Paul’s pre-incident function comes from Ms. Robichaud and Ms. Morin. They both testified that, prior to the medical incident, Paul had returned to his normal function - except for a recommendation that he ambulate with a walker.

[289] While no wheelchair was recommended, the Loeb Centre insisted that Paul use a walker when he was at the Centre. Paul had another walker at home. While his ever-hopeful mother and supportive friends believed that Paul did not require the walker, I find that the independent professional evidence demonstrates that Paul (a) required one prior to the medical incident, and (b) would continue to require a walker in the future. Even so, any dependence on a walker is far from being functionally paralyzed.

[290] The Defendants have failed to meet the evidentiary burden to apply the “crumbling skull” doctrine. There is no cogent, tangible and credible evidence that Paul would have become functionally paralyzed at 52 years of age, or even at age 57, the latter being the age Paul had reached as of the time of trial.

Proof of Loss

[291] Although the Defendants admitted liability for all damages up until February 2016, in their closing submissions, and for the first time, the Defendants argued that the Plaintiffs have failed to prove their losses were caused by Paul’s paraparesis. This argument cannot be reconciled with the admission of liability and causation at the outset of trial.

[292] The diagnosis of paraparesis, (a weakness of the lower limbs), Paul’s inability to walk, and his resulting confinement to a wheelchair were never challenged. The Defendants admit that the following damages arose from their negligence:

1. Expenses incurred by the Boones in the amount of $129,660.

2. OHIP’s subrogated claims and all CCAC/LHIN expenses for attendant care for five years to February 4, 2016 - $733,527.00.

3. The physicians’ costs - $12,443.64.

[293] The Defendants never questioned the causal connection between their negligence and these expenses. The Defendants’ argument is limited solely to the duration of those losses and the (now unsuccessful) application of the “crumbling skull” doctrine.

[294] While the Defendants have not accepted responsibility for expenses in the amount of $47,656.94 incurred after February 2016, they do not dispute the accuracy of this amount.

[295] The Defendants admit the value of additional services incurred by CCAC/LHIN but do not admit liability for them. This amounted to $174,208. as of the start of trial.

Damages for loss of Care Guidance and Companionship pursuant to s. 61(2)(e) of the Family Law Act, R.S.O. 1990, c F.3 (“FLA”)

Beth and Larry Boone

[296] Counsel for the Plaintiffs argue that the Boone’s mutually beneficial relationship with their son has been irrevocably changed. They submit that the loss suffered by each parent is comparable to the loss that is assessed for the loss of a spouse. Each of Beth and Larry Boone are seeking general damages for loss of care, guidance, and companionship in the amount of $150,000.

[297] The Defendants submit that an amount in the range of $75,000 to $90,000 is more appropriate; they rely on Gordon v. Greig, 2007 CanLII 1333 (ON SC). In that case, the parents of a 21-year-old man who suffered a brain injury and upper spinal injury in a car accident were awarded $75,000 ($91,756.03 present value) for loss of care guidance and companionship. As a result of his injuries, the son lost both bladder and bowel control. In making this award, the court noted that the parents had undertaken a tremendous role as caregivers to their son.

[298] Also in Gordon, the mother of another 21-year-old man rendered a paraplegic in the accident provided tremendous care and assistance to her son. The trial judge described her loss of care and companionship, as well as guidance, as “astronomical.” She was awarded $75,000 for general damages for loss of care, guidance and companionship. This mother was not awarded any amount for past attendant care.

[299] In Kollaras (Litigation Guardian of) v. Olympic Airways S.A., [1999] O.J. No. 1447 (Ont. Sup. Ct.), the following factors were identified in assessing damages for loss of care, guidance and companionship:

a) the age, mental and physical condition of the claimant

b) whether the injured party lived with the claimants and if not, the frequency of the family visits

c) the intimacy and quality of the claimant's relationship with the injured party

d) whether or not the claimant is emotionally self-sufficient

e) the joint life expectancy of the claimant and the injured party

[300] I am mindful of Beth and Larry’s respective claims under s.61(2)(d) of the FLA for damages related to the attendant care services provided subsequent to the medical incident. Their respective entitlement to damages under that heading is another factor in assessing their respective general damages under s. 61 of the FLA. I assess each of Larry and Beth’s general damages under this section in the amount of $90,000.

Larry and Beth’s Claims for Attendant Care Services

[301] Section. 61(2)(d) of the FLA provides that, where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services.

[302] The Defendants urge me to take a global approach is assessing the damages under this heading. They cite the decision in Matthews Estate v. Hamilton Civic Hospitals, 2008 CanLII 52312 (ON SC) in support of that argument. A closer look at that decision, at paras. 182 and 183, reveals the following:

182 The defence submits that hourly rate models produce a misleading illusion of reliability and should be avoided. They cite the case of Dube (Litigation Guardian of) v. Penlon Ltd. where Zuber J. choose to compensate past care using a global figure. They also rely on my decision in Desbiens v. Mordini, where I awarded Mrs. Desbiens a global sum for the care provided to her husband up to the date of trial. However, in both cases and in other cases where the global approach was used, there was no precise evidence regarding the amount of time expended and the nature of the services provided over and above what would ordinarily have been performed by the family member.

183 In such situations a lump sum approach may be reasonable and indeed necessary. However, the circumstances of this case are different. There is ample evidence to support the amount of time spent and the nature of the services provided. Clearly, if Mr. Matthews had not been incapacitated his sons would not have provided any of these services for him; thus, all of the services provided were necessitated solely as a result of his injury. In these circumstances, to use the global approach would be inappropriate.

[303] The Defendants also rely on the Plaintiffs’ failure to include a specific claim for past attendant care in their pleadings. The Defendants argue that, because of that failure, the plaintiffs are precluded from advancing such a claim at trial. This argument fails to recognize the Plaintiff’s entitlement to amend their pleading at any time in order to conform with the evidence heard at trial. It is also open to argument that Paul could claim and be entitled to recover damages for attendant care services and hold in trust for his parents the damages recovered.

[304] I heard extensive evidence regarding the care that Beth and Larry have provided to Paul from the date of his discharge from hospital in April of 2012 until 2019 when they were able to hire extra help with Paul’s care.

[305] I am satisfied that Paul requires two-person attendant care, 24 hours a day. Paul requires two-person care at night, in the event of an emergency. Paul cannot get out of bed on his own. He should not have to rely on 911.

[306] The Boones recognize that Paul always required one person to be with him to provide supervisory care, 24 hours a day. Their claim for damages related to attendant care is therefore limited to the cost of providing the extra person 24 hours a day.

[307] In Matthews Estate, Justice Spiegel rejected arguments that it would be inappropriate to compensate at a professional rate for caregivers who are not professionals. He stated: “It is the nature and quality of the services provided and their value to the person injured rather than the professional qualifications of the provider that should govern the assessment.” At paras. 192-194, he said:

192 To limit the award to the amount of income or potential income lost by a claimant would undervalue high quality and skillful services provided by low income or unemployed family members. This would unfairly discriminate against such persons solely on the basis of their economic status.

193 Moreover, if the family had in fact hired professional caregivers, they would have been entitled to claim “the actual expenses reasonably incurred” under s. 61(2) (a). I see no reason why the damages assessed should be significantly less because the family members did not have sufficient financial means to hire professional caregivers.

194 I would also observe that a claim for future care is clearly based upon the anticipated cost of obtaining the appropriate level of care in the marketplace. I see no principled reason why the assessment should be significantly different merely because the services have already been rendered. Otherwise, where sophisticated care is being provided by family members, it would be in defendant’s interest to delay the trial as long as possible so as to avoid the more onerous impact of an award for future care costs.

[308] In Rolley, Justice Corthorn awarded the FLA claimant (the wife of the injured party) damages for the value of past attendant care she had provided. Justice Corthorn found it reasonable to compensate Mrs. Rolley at the hourly rate that would have been paid to a personal support worker (“PSW”), had one been hired and available.

[309] I adopt that approach here. The Boones seek an hourly rate of $32.00 which is less than the average hourly rate for a PSW identified by Ms. Bierbrier in her testimony.

[310] The Boones’ claim for damages for past attendant care services is calculated as follows:

April 24, 2012 through to October 5, 2020

3,086 days x 21 hrs. a day = 64,806 hrs.

Less

Loeb Centre (27.5 hrs. per week)

27.5 hrs. x 412 weeks = 11,330 hrs.

Loeb Dances (10 per year x. 3hrs)

30 hrs. x 8 years = 240 hrs.

Thursday nights (5 hrs. per week)

5 hrs. x 412 weeks = 2,060 hrs.

Bowling (9 hrs. per week)

2 hrs. x. 206 weeks = 412 hrs.

Aktion Club (3hrs. per week)

3 hrs. x. 412 weeks = 1,236 hrs.

Friday night hockey (5 hrs.)

5 hrs. X 10 games x 8yrs = 400 hrs.

Net total = 49,128 hrs.

Sub-total past attendant care (at $32/hr.) = $1,572,096

[311] I deduct a further $5,344, being the cost of 167 hours of additional PSW services obtained since August 2020. With that care provided by someone other than the Boones, they were freed from their attendant care responsibilities during those hours.

Total award for past attendant care $1,566,752[^4]

Paul Boone

a) General Damages

[312] Prior to the February 4, 2011 incident, Paul enjoyed a full life despite his many challenges. There is no doubt that Paul benefited from the extraordinary care and attention of his parents. Larry and Beth were able to successfully merge their own lives and interests with Paul’s needs, such that they never considered Paul a burden. Paul’s mobility was an integral part of that picture and central to his ability to function independently at home and in the community.

[313] All that has changed. Paul is confined to a wheelchair and he is dependent on others for almost all aspects of his daily life. Family and friends have been turned into caregivers. He has been diagnosed with depression. While Paul still engages in many of his former activities, his participation in them has been diminished by his new reality.

[314] Paul seeks general non-pecuniary damages in the amount of $350,000, close to the “cap” for the 1978 trilogy of cases from the Supreme Court of Canada. The Defendants submit that such an award would ignore Paul’s pre-existing condition and that his damages under this heading should be assessed in the range of $250,000.

[315] In Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), Justice H. Spiegel said this at paras. 279 and 283:

279 In assessing damages the court must attempt to restore the plaintiff, as far as money can do so, to the position that he would have been in prior to the accident with all of its attendant risks and shortcomings and not to a better position. Pre-existing medical problems and a predisposition to develop the disability brought about by an accident should be considered in assessing general non-pecuniary damages. This is so because, in assessing the factors that combine to yield an award for general non-pecuniary damages, the jury must compare the individual plaintiff's anticipated lot in life after the accident with that which the plaintiff would have enjoyed but for the accident.

283 I realize that comparative analysis of other cases generally offers limited assistance. The assessment of general non-pecuniary damages ultimately depends on a mix of factors, many of which are peculiar to a particular plaintiff. An assessment of an amount close to the Trilogy cap in this case would ignore the realities of Mr. Desbiens’ condition in life prior to the car accident.

[316] The court awarded $165,000 ($231,987 dollars present value) to a plaintiff who was paraplegic before suffering injuries in a car accident. The plaintiff was 44 and lead a fairly independent life prior to the accident, despite being confined to a wheelchair. Following the accident, the plaintiff required assistance for transfers in and out of bed and with bathing, dressing and bowel movements. The evidence also established that he suffered from anxiety and depression.

[317] I find the trial judge’s assessment of damages in that case helpful. I assess Paul’s general non-pecuniary damages in the amount of $250,000.

b) Out-of-Pocket Expenses

[318] In addition to the admitted amount of $129,660.60, I allow the additional sum of $47,656.94[^5] for out-of-pocket expenses incurred since February 4, 2016. This calculation was not disputed. The total amount awarded under this heading is $177,317.54.

c) Future Care Costs

[319] As the Supreme Court directed in Andrews v. Grand & Toy Alberta Ltd, 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, at para. 25, a court is required to consider the amount which may be reasonably required to put the plaintiff as nearly as possible in the position which they would have been but for the injury.

[320] In Gray v. Macklin, [2000] O.J. No. 4603 (Ont. Sup. Ct.), the trial judge concluded that the test for determining the appropriate award for future care costs is an objective one, based on medical evidence. In order to prove a claim for future care costs, the following conditions apply:

1. There must be medical justification for the claims.

2. The award must be fair and moderate,

3. The claims must be “reasonably necessary” having in mind personal circumstances.

[321] The Defendants rely on British Columbia authorities that emphasize the requirement of medical justification for each expense claimed. The Defendants submit that, where a plaintiff relies on the report of an occupational therapist or a rehabilitation consultant in the support of a claim for future care, an evidentiary link between the medical evidence and the recommendations in the report is also required.

[322] In Rolley, the plaintiff’s claim for damages for the cost of future attendant care services was based on the opinion of occupational therapist. Justice Corthorn noted that the plaintiff’s occupational therapist did not review any of her recommendations with the plaintiff’s medical experts. Ultimately, Justice Corthorn found that the deficiency was remedied by the evidence of those experts whose medical opinions were consistent with the occupational therapist’s recommendations.

[323] The Defendants argue that there is no medical justification for Ms. Bierbrier’s recommendations. This argument is similar to the Defendants’ argument that the Plaintiffs have not proven that the Defendants’ negligence caused the Plaintiffs’ losses. The former argument fails for the same reasons as does the latter argument. The Defendants admitted that their negligence resulted in Paul’s paraparesis. They admitted damages that total nearly one million dollars. These damages include amounts paid for the very needs (and related expenses) identified in Ms. Bierbrier’s report, including attendant care.

[324] The evidentiary link between the recommendations in Ms. Bierbrier’s Future Care Cost Report can be found, with some exceptions, in both (a) the admission that Paul suffers from paraparesis; and (b) the type of expenses for which the Defendants have admitted liability. These expenses include all services provided by the LHIN/CCAC through to February 4, 2016 for homemaking/ personal support, supplies and equipment. They also include $129,660.60 for modifications to the home, medical devices, medical supplies, and other services.

[325] The recommendations in the Future Care Cost Report are those of a duly qualified life care planner whose evidence withstood cross-examination. She was never asked in cross-examination for additional medical justifications for each of the expenses set out in her report. The Defendants retained their own life care planning expert to critique Ms. Bierbrier’ s report but chose not to call their expert at trial.

[326] I reject the Defendants’ request for an adverse inference to be drawn from the Plaintiffs’ failure to call several of Paul’s treating physicians. The Defendants could have called any of the treating physicians if the Defendants were of the view that the evidence of these individuals was necessary or important. The Defendants called one of Paul’s treating physicians, Dr. MacGregor. She assessed Paul before the incident. The Defendants, at one point in the trial, indicated that they intended to call other treating physicians but elected not do so. The Defendants had access to all of the relevant records, including from Paul’s treating physicians. Those records were in turn available to the Defendants’ future care costs expert.

[327] This case is easily distinguished from the decision in Keech v. Chang, 2009 CanLII 18293 (ON SC), cited by the Defendants. That case also involved a medical negligence claim and the assessment of the impact of a surgical procedure on the plaintiff’s long-standing, pre-existing depression. The trial judge noted that she had the discretion to draw an adverse inference of the kind requested by the Defendants in the matter before me. At para. 210, the trial judge concluded that “in a case like this one, where so much of the assessment turns on a comparison of the plaintiff’s level of function pre-and post-surgery, the absence of her two primary and longstanding caregivers – Drs. King and Chua – is most conspicuous…”

[328] The trial judge in Keech added that, even without drawing any unfavourable inference from the plaintiff’s failure to certain treating physicians, she would have come to the same conclusion for the other reasons set out in her decision.

[329] In Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, the Court of Appeal for Ontario clarified the role of a participant expert a para.60:

60 Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[330] In Imesom v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, 143 O.R. (3d) 241, a participant expert was not permitted to testify on liability and causation but was permitted to provide evidence for recommended future treatment. In the matter before me, Ms. Matheson’s and Ms. Proulx’s evidence fits within the Westerhof framework and their evidence was unchallenged. Ms. Bierbrier properly relied on that evidence in updating her Future Care Costs Report.

Medication and Assisted Devices

[331] Based on Ms. Bierbrier’s evidence, I am satisfied that the following items are reasonably necessary. Mr. Martel provided unchallenged evidence of the present values of the future expenses associated with the items listed below.

Item Present Value

a. low pressure mattress – Every 5 – 7 years $24,877

b. maintenance for mattress – annually $11,959

c. electric hospital bed maintenance – annually $8,371

d. Voyageur ceiling track – one lifetime replacement $4,347

e. ceiling track slings (x2) – replaced every five years $4,185

f. batteries for track – replaced every 2- 3 years $1,334

g. motor strap replacement for track – replaced every 5 years $1,039

h. motor replacement for track – every 10 years $9,931

i. manual wheelchair and seating – every 5 years $23,503

j. wheelchair maintenance – annually $8,736

k. wheelchair seating – every 5 years $11,363

l. Sam Hall Turner – one replacement $849

m. Molift - one replacement $1,500

n. Ocean commode – every 2 – 5 years $9,136

o. maintenance for commode – annually $3,438

p. Secura protective ointment, 1 tube ever month $4,866

q. Secura protective cream $2,806

Total $ 132,240.00

[332] I make no allowance for compression socks, as Ms. Bierbrier herself questioned whether they are associated exclusively with Paul’s post-incident condition. Paul had a long history of cellulitis and problems with his feet and lower limbs.

[333] I find that the claim for an electric wheelchair is not reasonable. This item was described as something that “might be nice to have”; it was not included in Ms. Bierbrier’s original life care plan. There was no evidence that Paul had the cognitive skills required to operate such a device.

[334] Accordingly, I assess damages for medication and assistive devices in the total amount of $132,240.00

Professional Services

[335] I accept Ms. Bierbrier’s evidence regarding these items as being reasonably necessary. I accept Mr. Martel’s unchallenged calculations of the present values.

Item Present Value

a. occupational therapy – Phase 1 $7,335

b. occupational therapy – Phase 2 $49,537

c. physiotherapy – Phase 1 $6,803

d. physiotherapy – Phase 2 $54,053

d. physiotherapy Assistant $270,000

e. case management $59,155

Total $446,883.00

[336] I conclude that family counselling is not reasonably necessary. Dr. Ricci and Ms. Bierbrier agreed that the need for this form of counselling is best assessed by a family therapist. Some ten years have elapsed since the incident and the evidence reveals that Beth and Larry have adapted to their new situation. Beth impressed me as a remarkably resilient person, who has overcome her own health issues to continue to provide support for her son. She expressed no need for counselling and described the tremendous relief she experienced once a case manager was in place and she no longer had to make all the decisions. Moreover, Larry’s present memory problems present definite challenges to any form of counselling.

[337] I am also not satisfied that psychological counselling for Paul is a reasonable expense. Dr. Ricci admitted that this therapy would be “tricky” given Paul’s cognitive delay. Her prognosis for its eventual success is “very guarded”. Paul was given anti-depressants in 2013; that prescription was discontinued in 2015. Dr. Ricci was aware that this coincided with his use of the sleep apnea machine. She was unaware that this led to reports of improved mood.

[338] Dr. Ricci’s recommendation that Paul’s occasional negative thoughts be diverted is a strategy that can be easily implemented by the PSWs who surround Paul during the day and by the rehabilitation support worker who helps Paul access activities in the community.

[339] A closer look at the tasks performed by the rehabilitation support worker reveals that he effectively replaces Beth and Larry in ensuring Paul’s continued participation in the community. There was extensive evidence of the Boones’ significant roles, respectively, in ensuring that Paul had access to swimming, skating, mini-putt golf and a wide range of activities. Notwithstanding his confinement to a wheelchair, Paul continues to engage in activities such as bowling and attending hockey games.

[340] Given their respective ages, Beth’s and Larry’s respective efforts are no longer sustainable. I find that they will be required to hire someone else to continue the support they have been providing Paul to date. I limit the claim for a rehabilitation support worker to five years, at an annual cost of $24,602.88 for a total of $123,014.

[341] There is an insufficient evidentiary link between the recommendation for speech language pathology and Paul’s paraparesis. This recommendation comes from Ms. Matheson, an occupational therapist, who assessed Paul nearly eight years after the event. She agreed that a recommendation for speech language therapy would be best determined by a speech language pathologist. Beth questioned the need for this therapy. It was unclear if this recommendation flowed from perceived communications issues or had to do with Paul’s swallowing ability. Beth testified about a choking problem that she attributed to Paul’s inability to sit up straight. There was no medical evidence to support that conclusion.

[342] The total damages awarded under the heading of future professional services is $446,883.00 + $123,014 = $569,897.00.

Personal Care Services

[343] Ms. Bierbrier identified the need for a PSW 21 hours a day for life. The three additional hours per day (for a total of 24 hours) are provided by the LHIN/CCAC. These three hours are accounted for under the OHIP Subrogated Claim. I have already concluded that Paul requires additional attendant care 24 hours a day for safety reasons. I accept the average hourly rate of $37.99 inclusive of HST calculated by Ms. Bierbrier. The annual cost is $291,193.35. According to the calculations prepared by Guy Martel on November 4, 2020, the present value of those services is $6,829,154.

[344] From this amount, I deduct 20 hours per week for the time that Paul attends the Loeb Centre. I have not deducted any travel time to account for any delay in Paul’s return to the program. I have assumed the program’s availability for 50 weeks of the year or 1000 hours.

[345] Paul’s attendance at that program was an integral part of his life. He returned to “work” at the Loeb Centre as soon as he could after his nearly fatal fall in October 2010. Beth testified that “work was his life”. COVID and the need for another occupational therapy assessment interrupted his attendance. I am satisfied that a solution will soon be found to permit Paul’s continued participation at the Loeb Centre over time once COVID-19 restrictions are lifted. In note that the 20 hours spent at the Loeb Centre are consistent and regular. They did not detrimentally impact the scheduling of PSW services in the past.

[346] Ms. Bierbrier made no allowance for Paul’s attendance at the Loeb Centre – because of the uncertainty of continued government funding. There was, however, no evidence that the wide array services being offered by OCAPD (like the services at the Loeb Centre) are at risk of elimination. Neither Gisele Thibodeau nor Ann Marie Bloom expressed any concerns about the future of the Association. Their respective testimony is that Paul is entitled to attend the Loeb Centre for as long as he likes; there is no age limit.

[347] I do not consider the services offered by OCAPD to be voluntary assistance that may be available to a plaintiff from family and friends.

[348] From the amount claimed, I deduct the time Paul spends at the Loeb Centre for an annual reduction of 1000 hours of attendant care (50 wks. x 20 hrs. or $37,990 annually). I therefore reduce the attendant care by that amount. By relying on the same present value factors, this reduces the total amount awarded to $5,938,200.92 for personal care services.[^6]

Home and Vehicle Maintenance

[349] I do not award any damages for home renovations, which were proposed principally to the main floor powder room. The $50,000 estimated by Ms. Bierbrier for the renovations is her best guess; she would defer the appropriate expert for a definitive opinion on the expenses associated with those renovations. There is no evidence that any such modifications are planned or even possible. Ms. Bierbrier’s future care plan contemplates that Paul will transition to another home in five years.

[350] I accept the cost of a modified van and the associated present value of $68,518. This cost is predicated on a shared cost if Paul ultimately resides with another individual with similar limitations.

[351] In summary, the damages for future care costs are as follows:

medication and assistive devices $ 132,240.00

professional services $ 569,897.00

personal care services $ 5,938,200.92

vehicle $ 68,518.00

Provisional Total $ 6,708,855.92

I use the term “Provisional Total”, as I next turn to the contingencies, if any, to be applied to the calculation of damages for Paul’s future care costs.

Contingencies

[352] Contingencies are explained by the Court of Appeal for Ontario in Graham v. Rourke, (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 as follows:

These cases, and those which have applied them, tell me that contingencies can be placed into two categories: general contingencies which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness; and “specific” contingencies, which are peculiar to a particular plaintiff, e.g., a particularly marketable skill or a poor work record. The former type of contingency is not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone's life has “ups” as well as “downs”. A trial judge may, not must, adjust an award for future pecuniary loss to give effect to general contingencies but where the adjustment is premised only on general contingencies, it should be modest.

If a plaintiff or defendant relies on a specific contingency, positive or negative, that party must be able to point to evidence which supports an allowance for that contingency. The evidence will not prove that the potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of the contingency is a realistic as opposed to a speculative possibility. [Internal citation omitted]

[353] Based on Paul’s complicated pre-incident medical history and mobility issues, all of which are discussed in earlier sections of these reasons, I find that it is reasonable to apply an overall negative contingency of 15% to all of the costs associated with Paul’s future care. For that reason, I reduce the Provisional Total assessed and they are correspondingly reduced by that amount for a total of ($6,708,855.92 x 85 %) and arrive at a total of $5,702,527.53.

OHIP Subrogated claim

[354] The following amounts for future or expenses incurred to date by the Ministry of Health for Paul’s care are admitted by the Defendants:

Hospitalization costs $ 579,163.00

Physician and imaging costs $ 12,443.64

LHIN/CCAC to February 4, 2016 $ 154,364.00

Total $ 745,970.64

[355] I further allow the LHIN/CCAC costs incurred to trial in the amount of $174,208.00. Neither that amount nor the total that appears immediately above is subject to a reduction for negative contingencies (which apply only to future care costs). I accept the future LHIN/CCAC attendant claim of $975,593.00, subject to the 15% contingency applied above to Paul’s future care expenses. That portion of the LHIN/CCAC claim is therefore reduced to $829,254.05.

[356] The total amount of damages awarded with respect to the Ministry of Health (OHIP) subrogated claim is $1,749,432.69.[^7]

Management Fee

[357] I accept that a management fee is necessary; financial management advice is essential to ensure that the damages awarded to Paul generate an adequate return to cover his future care costs. If the parties are unable to agree on an amount for the management fee, then I request that the Plaintiffs file an affidavit from Mr. Martel setting out his calculation of the management fee based on the damages awarded.

Summary of Damages Awarded

Paul Boone

General non-pecuniary damages $ 250,000.00

Out-of-pocket expenses $ 177,317.54

Future care costs $ 5,702,527.53

Sub-total (Paul) $ 6,129,845.07

Beth and Larry Boone

Beth Boone (loss of care, guidance, & companionship) $ 90,000.00

Larry Boone (loss of care, guidance, & companionship) $ 90,000.00

Past attendant care services $ 1,566,752.00

Sub-total (Beth and Larry) $ 1,746,752.00

Total (Paul, Beth, and Larry) $ 7,876,597.07

Ministry of Health (OHIP) $ 1,749,432.69

[358] Pre-judgment interest is applicable to the date of judgment – 5 % on general damages and a mixed rate for past attendant care.

[359] If I have erred in any of these calculations, I would ask that counsel provide me with their submissions in writing. Counsel are directed to confer to resolve the conflicting evidence on whether HST is payable for PSW services because Paul also receives these services from the LIHN/CCAC. If they are unable to resolve the issue within 30 days of the release of this decision, they are to seek an appointment with me to determine if further oral submissions and evidence are necessary.

[360] Finally, this was a four-week trial conducted entirely by use of the ZOOM Webinar format. All documents were uploaded by using the SYNC synchronization service. I was provided with an iPad for that purpose. All documents were readily accessible and only a handful of documents required printing. All witnesses testified from the comfort of their homes or offices. This was of particular benefit to Beth and Larry Boone. With the exception of few technical issues at the very commencement of trial, the matter proceeded smoothly. I am indebted to the court staff for their very able assistance and to counsel for their ability to adapt so quickly to this relatively new virtual trial world.

[361] If no appointment is required to deal with the HST issue, counsel are, nevertheless, requested to arrange an appointment with me to discuss costs.

­­­­­­­__________________________

Mr. Justice Robert N. Beaudoin

Released: March 26, 2021

[^1]: It appears that HST has been applied to amounts paid to Second Family Care for PSW services as set out in the invoices filed in Exhibit 3, and HST is reflected again in the totals found at Exhibit 21. [^2]: At Exhibit 18, Future Care Cost Tables, Item 37, Ms. Bierbrier notes that PSW services are HST exempt if a person is in receipt of CCAC (LIHN) services. This was Ms. Christian’s evidence as well. [^3]: Boone v. O’Kelly, 2020 ONSC 6932. [^4]: $1,572,096 - $5,344 [^5]: Subject to clarification on HST payable for PSW services [^6]: Subject to final determination of the HST issue. [^7]: ($745,970.64 + $174,208.00 + $829,254.05).