NEWMARKET COURT FILE NO.: CV-18-136570
DATE: 20211119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wendy Constantinou
Plaintiff
– and –
Theresa Stannard
Defendant
Kevin Henderson and Nicholas W. Smith, for the Plaintiff
Russell K. Laing, for the Defendant
HEARD: May 18, 20-21, 25-27, and June 2, 2021
REASONS FOR JUDGMENT
SPEYER J.
(a) Introduction
[1] On December 1, 2016, a large dog owned by Theresa Stannard bit Wendy Constantinou. Ms. Constantinou claims against Ms. Stannard for damages to compensate her for injuries she sustained when the dog bit her. The most significant of those injuries was a torn left rotator cuff.
[2] It is not disputed that Ms. Stannard is liable to Ms. Constantinou for damages resulting from her dog’s bite. Section 2(1) of the Dog Owner’s Liability Act, R.S.O. 1990, c. D.16 (“D.O.L.A.”) provides that “the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person”. The D.O.L.A. provides that the amount of damages may be reduced in proportion to the degree to which the fault or negligence of the plaintiff caused or contributed to the damages, but it is not alleged that Ms. Constantinou was in any way at fault or negligent in the incident.
[3] This trial is concerned with the assessment of damages. The parties have fundamentally different positions as to what the award of damages should be.
[4] It is the position of the plaintiff that her left rotator cuff was injured when the dog bit her, and that the injury has impaired her ability to carry on her customary activities and employment. She seeks general damages in the amount of $150,000, damages for loss of income in the amount of $83,888 for past income lost and $111,540 for future income lost, costs of future care in the amount of $440,000, and out of pocket expenses in the amount of $21,666.85. She also claims $7,866.96 in payment of OHIP’s subrogated interest. The total amount claimed is $814,961.81.
[5] It is the position of the defendant that the plaintiff’s pre-attack physical condition contributed to her shoulder injury. The defendant does concede that the dog bite caused Ms. Constantinou’s shoulder to become symptomatic. The defendant also argues that the plaintiff’s costs are not as high as alleged, and that the damages claimed are excessive. The defendant submits that an award of general damages in the amount of $45,000 would be appropriate, and damages for past and future loss of income be assessed at $54,896, and that any award for the costs of future care and out of pocket expenses should be nominal, for a total award of about $100,000.
(b) The dog bite
[6] On December 1, 2016, Wendy Constantinou went to her father’s property in Schomberg to meet electricians who were working there. Theresa Stannard rented accommodation on the property. When Ms. Constantinou arrived, she saw Ms. Stannard in her van. Ms. Stannard’s dog, Sam, who weighed over 100 pounds, was in the van with her. Ms. Stannard asked Ms. Constantinou if she had a rope that she could use to tie up the dog outside because Sam could not remain inside where the electricians were working. Ms. Constantinou offered Ms. Stannard the use of her lunge line, which is a long line used to exercise horses. Ms. Constantinou reached towards the open door of the van to pass the line to Ms. Stannard. Sam reached over Ms. Stannard’s hand and bit Ms. Constantinou’s right hand. Sam then released her hand and grabbed her left elbow with his mouth. Ms. Constantinou pulled hard to get away from the dog, who was very close to her face. Ms. Stannard pulled hard on Sam’s leash to restrain him. Ms. Constantinou did not do anything to provoke Sam.
[7] After Ms. Constantinou freed herself, she noticed that there was blood running down her hand. She grabbed a rag from her truck to put on her hand and drove herself to an urgent care clinic. The doctor there washed the wound, applied a bandage, and prescribed an antibiotic. She advised Ms. Constantinou to apply ice to the injury.
[8] Ms. Constantinou’s son took photographs of her injuries. The photograph of the injury to Ms. Constantinou’s right hand shows a puncture-type wound to the fleshy part of her palm at the base of her thumb. The photograph of her left arm shows apparent bite marks surrounding an area of significant bruising above her elbow on the back of her arm.
(c) The issues
[9] The issues for determination are:
(1) Did Sam’s bite cause an injury to Ms. Constantinou’s left rotator cuff and the consequent loss of function in her left shoulder?
(2) What amount of general damages should be awarded?
(3) What is the amount of Ms. Constantinou’s past and future loss of income?
(4) What is the present cost of Ms. Constantinou’s future care needs?
(5) What out of pocket expenses did Ms. Constantinou incur?
(6) What is the amount of OHIP’s subrogated claim?
(d) Did Sam’s bite cause Ms. Constantinou’s left shoulder injury and impairment?
[10] Ms. Constantinou testified that Sam grabbed the back of her left elbow. She pulled very hard to free herself from Sam’s bite as Ms. Stannard held Sam’s leash.
[11] Ms. Constantinou took 10 days off work after Sam bit her. Her left arm was bruised from the elbow to the shoulder. She experienced numbness down to her baby finger and tremendous pain. She could not sleep at night. She applied ice packs to stop the throbbing.
[12] About a week or two after the incident, Ms. Constantinou phoned her family doctor and took the first available appointment on January 23, 2017.
[13] On January 23, 2017, the puncture wound on Ms. Constantinou’s right hand was healed. But her left arm was “not usable”. It was sore and the pain could not be relieved. The doctor referred Ms. Constantinou for an ultrasound and x-ray and recommended that she begin physiotherapy immediately.
[14] When Ms. Constantinou returned to see her family doctor after the tests were done, she was advised that there was a tear in her shoulder area and a nerve was compressed. Her family doctor referred her to a surgeon, Dr. Wang. Dr. Wang ordered an MRI.
[15] The MRI revealed that there was a tear in Ms. Constantinou’s left rotator cuff and Dr. Wang advised that he could repair the injury surgically. Ms. Constantinou underwent surgery to repair a partial tear of the supraspinatus tendon and a partial tear of the long head of the biceps on September 23, 2017. Her arm was immobilized following the surgery. She began physiotherapy in November 2017, attending twice per week.
[16] Dr. Robin Richards was qualified to provide expert opinion evidence in relation to the diagnosis, treatment and rehabilitation of orthopedic injuries of the upper extremity. He met with Ms. Constantinou on November 27, 2019 and took her history. He examined the imaging report prepared following the ultrasound examination on February 19, 2019 and the MRI report. He relied on the interpretations of those tests provided by the clinicians who prepared the reports. He conducted a physical examination of Ms. Constantinou’s shoulder and concluded that there was a significant decrease in her rotational range of motion on the left side. Her grip strength and pinch strength were less on her left side than on her right side. His review of her medical records and history caused him to conclude that her shoulder was functional prior to the dog bite.
[17] Dr. Richards testified that a rotator cuff tear can be caused by many different mechanisms. The force required to cause a tear depends on the strength of a patient’s rotator cuff tendons, which varies greatly according to age.
[18] I did not permit Dr. Richards to testify about his opinion as to whether the rotator cuff injury sustained by Ms. Constantinou was caused by the dog bite. Dr. Richards has no expertise in the forces that can be applied by any particular breed of dog. I did permit Dr. Richards to provide his opinion that based on Ms. Constantinou’s account, the forces applied to her arm during the incident were sufficient to cause the impairment that he observed.
[19] Ms. Constantinou was cross-examined about various medical issues that she experienced before Sam bit her. I accept Ms. Constantinou’s evidence that her left shoulder had no functional limitations prior to the dog bite. Dr. Richards testified that there may have been some age-related degenerative change present in Ms. Constantinou’s shoulder prior to the dog bite but noted that she had no functional limitations in her shoulder prior to the dog bite. I am satisfied that none of the health concerns described by Ms. Constantinou in her evidence, or documented in her medical records, affected the functionality of her left shoulder prior to the dog bite.
[20] The extreme change in the functionality of Ms. Constantinou’s left shoulder occurred when Sam bit her. I am satisfied that Sam’s bite caused a partial tear of the supraspinatus tendon and a partial tear of the long head of the biceps in Ms. Constantinou’s left shoulder. I am satisfied that those injuries affected the functionality of Ms. Constantinou’s left shoulder and continue to do so. I am satisfied that Ms. Constantinou has suffered damages resulting from Sam’s bite.
(e) What amount of general damages should be awarded?
[21] To determine a just award for general non-pecuniary damages I must compare Ms. Constantinou’s anticipated lot in life after the dog bite with that which she would have enjoyed but for the dog bite: Koukounakis et al. v. Stainrod et al. (1995), 23 O.R. (3d) 299 (C.A.). I must “consider real and substantial future possibilities, both positive and negative, which could impact on the plaintiff’s quality of life”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at p. 644 (C.A.).
[22] Ms. Constantinou is 65 years old. She was 60 years old when Sam bit her.
[23] Ms. Constantinou married in 1983. Her three children are now adults. She has two grandchildren. She went back to school in 2009 to obtain her certificate to become a personal support worker (“PSW”). She separated from her husband in 2014. She bought the home in which she presently lives in 2015. It is a large home, situated on about 10 acres of property.
[24] Ms. Constantinou testified that before the dog bite she enjoyed good physical health and an active lifestyle. She spent her leisure time gardening and maintaining her large rural property, grooming and exercising horses, and caring for her dogs. She was employed on a permanent part-time basis as a PSW and enjoyed that work very much. Ms. Constantinou’s account of her life before December 1, 2016 was confirmed by the evidence of her children, Natalie and Nicholas, who described their mother as an active, physically capable woman who enjoyed her work, who maintained her own home and property, and who enjoyed caring for horses and for her dog.
[25] Since her shoulder was injured, Ms. Constantinou can no longer participate fully in the leisure activities that brought her pleasure. Her ability to garden has been curtailed because she cannot use many of the tools she used before her injury, especially those that require two-handed operation. She is unable to ride, groom and exercise horses. She cannot bathe her Bernese Mountain Dogs. She is unable to care for her grandchildren without assistance because she cannot lift them, or their strollers. Her inability to participate in activities that she enjoyed has reduced her quality of life and has caused her to feel sad, frustrated and angry. Ms. Constantinou’s enjoyment of her work as a PSW was also diminished by her injury. Her job was important to her, not only from a financial perspective, but also from a social perspective. She enjoyed her work very much. She experiences pain in her left arm constantly, and that pain is exacerbated when she uses her arm.
[26] Ms. Constantinou’s reduced ability to engage in activities that she enjoyed is attributable in large measure to the impaired function of her left shoulder. The range of motion and strength of her left shoulder is reduced. She has permanent limitations on her ability to use her left arm for impact activities, heavy lifting, overhead activity, climbing, and any repetitive or forceful use of her left arm against resistance. While she has had other health challenges since her shoulder was injured that have limited her physical abilities, her shoulder injury has had and will continue to have a significant impact on her quality of life.
[27] Ms. Constantinou underwent surgery to repair her left shoulder injury on September 21, 2017. Following the surgery, she was required to immobilize the joint for six weeks.
[28] After surgery, Ms. Constantinou began a course of physiotherapy with Brenda Lantz, an experienced physiotherapist who is a member of the College of Physiotherapists for Ontario. Ms. Constantinou was referred to Ms. Lantz by her surgeon, and first saw her on November 8, 2017. Since then, Ms. Constantinou has attended appointments with Ms. Lantz sometimes every two weeks, sometimes weekly, and sometimes less frequently, to address left shoulder weakness, and decreased endurance and range of motion. The limited functionality of Ms. Constantinou’s left shoulder has continued, as has the pain. Her progress has been slow. The pain was aggravated by Ms. Constantinou’s work shifts during the times when she worked. Ms. Lantz testified that at the time of trial she was seeing Ms. Constantinou every two weeks, and that was an appropriate interval to address Ms. Constantinou’s needs.
[29] Dr. Richards testified that Ms. Constantinou’s injuries were only partly responsive to the surgical repair done by Dr. Wang. Based on the history provided by Ms. Constantinou, his physical examination of her, and his experience, Dr. Richards believes that her physical limitations are permanent.
[30] Ms. Constantinou has some scarring because of the surgery and the bite to her hand. I have examined photographs of those scars and conclude that the scarring has not reduced Ms. Constantinou’s quality of life.
[31] Ms. Constantinou also claims to have suffered vertigo and weight gain because of the dog bite. Cross-examination revealed that weight has been an issue for Ms. Constantinou since at least 2009, and that her weight fluctuated significantly before the dog bite. I do accept that she gained some weight during a period of inactivity following her shoulder surgery. While Ms. Constantinou attributes the vertigo she has experienced to the dog bite, it appears that she makes this connection because she did not have vertigo before the dog bite. There is no medical evidence that supports a connection between the dog bite and the vertigo experienced by Ms. Constantinou. While I find Ms. Constantinou to have been a generally candid witness, she did over-state the impact of the injuries she sustained on December 1, 2021 by attributing some physical limitations to the dog bite when that was unwarranted.
[32] In determining the quantum of general damages, I have considered:
(a) The age of the plaintiff;
(b) The nature of her injury;
(c) The severity and duration of her pain;
(d) Her ongoing disability;
(e) Her emotional suffering;
(f) The impairment of her lifestyle;
(g) The impairment of family and social relationships; and,
(h) The impairment of her physical and mental abilities.
[33] Taking all these circumstances into account, a fair award of general damages is $100,000.
(f) What is Ms. Constantinou’s past and future loss of income?
[34] Ms. Constantinou has worked since 2010 as a PSW at Kingsway Retirement Place (“Kingsway”), a long-term care facility. Before the dog bite, she worked four shifts of eight hours every two weeks. She was paid $19.03 per hour from May 1, 2016. She was paid extra for working on holidays and she picked up extra shifts to cover for colleagues who were unable to work. Additional shifts were often available, and she always worked when she was called in.
[35] Ms. Constantinou also earned income in the past from her ex-husband’s company and her father’s company, but neither employment was available to her when the dog bite occurred, nor will it be available to her in the future. She was attempting to acquire additional hours at Kingsway so that she could move up the seniority list to be considered for full-time employment. To calculate Ms. Constantinou’s past and future loss of income, I have considered only her employment at Kingsway, which was her sole source of employment income when the dog bite occurred. There is no evidence that she intended to seek out any other source of employment income at any time in the future, or that she had the capacity to do so.
(i) Past loss of income
[36] Ms. Constantinou’s ability to work as a PSW was compromised by her shoulder injury that was caused by the dog bite. She missed time at work. She is entitled to compensation for her past loss of income. The defendant does not dispute this. What is in dispute is the amount of compensation to be awarded to Ms. Constantinou for her past loss of income.
[37] To determine the amount that will compensate Ms. Constantinou for past loss of income, I must assess the amount that she might reasonably have earned from the date of the dog bite to the date of trial but for the dog bite, and compare it to her actual earnings to determine how much income she lost as a result of the dog bite. The standard of proof to be applied when determining what Ms. Constantinou might reasonably have earned but for the dog bite and resulting shoulder injury is the standard of “real and substantial possibility”: West v. Knowles, 2021 ONCA 296, at paras. 42-46, 72-74.
[38] Melissa McDonald, Ms. Constantinou’s supervisor, testified that she was a good worker, and that prior to December 2016, there were no performance or attendance issues and that she did not require any accommodation in the workplace.
[39] In 2016, Ms. Constantinou earned $25,893 from her employment at Kingsway. That was the greatest amount that she earned from that employment since she began working there in 2010. There is no reason to believe that her hours going forward would be reduced, and it is reasonable to expect that she would have continued to pick up extra shifts as she did in 2016. Ms. Constantinou’s 2016 income from Kingsway provides an appropriate baseline from which to calculate her past loss of income.
[40] After the dog bite on December 1, 2016, Ms. Constantinou did not return to work for 10 days. The 10 days that she could not work following her injury on December 1, 2016 must be accounted for when determining what Ms. Constantinou’s 2016 income from her work as a PSW would have been, but for the dog bite. Given that in the remaining 50 weeks of 2016 she earned, on average, $517.86 per week, I will add $1,035.72 to determine what her income from her employment at Kingsway would have been in 2016 but for the injury caused by the dog bite. That amount is $26,928.72.
[41] The shortfall in Ms. Constantinou’s income in 2016 attributable to the dog bite is $1,035.72.
[42] On January 23, 2017, Ms. Constantinou’s family doctor recommended that she work modified duties that limited her need to lift with her left arm. She did so until her doctor recommended that she take time off from work.
[43] In July 2017, Ms. Constantinou’s family doctor recommended that she not work while she awaited surgery to repair her shoulder. She took her doctor’s advice. She did not work for the remainder of 2017 while she awaited and then recovered from surgery.
[44] In 2017, Ms. Constantinou earned $15,220. Given her baseline annual income from employment of $26,928.72, she earned $11,708.72 less than she would have earned but for her shoulder injury. The evidence establishes that this shortfall was entirely attributable to the injury caused by the dog bite.
[45] Dr. Wang did not clear Ms. Constantinou to return to work until January 2019. Her income from employment in 2018 was only $133. Therefore in 2018, she earned $26,795.72 less than she would have earned but for her shoulder injury.
[46] When Dr. Wang cleared Ms. Constantinou to return to work in January 2019, he advised her to work only one eight-hour shift per week, on modified duties where she did not lift with her left arm.
[47] Ms. Constantinou’s return to work was delayed by about two weeks because of an unrelated injury she sustained when she slipped on ice in February 2019 and fell onto a crossbar of her dog run. She acknowledges that this delay in returning to work was unrelated to the dog bite.
[48] It took some time for her employer to work Ms. Constantinou back into the schedule, and she returned to work on March 1, 2019, working one day per week. When Ms. Constantinou returned to work, she could not do regular tasks using her left arm and asked other staff members to help her if she had to lift something heavy. In May 2019, her family doctor, Dr. Wasan, noted that she was working one day per week, and experiencing tenderness and achiness in her left shoulder.
[49] Ms. Constantinou’s return to work was also compromised when she fell at home in April 2019, impacting her left hip. Possible bursitis was diagnosed. The left hip pain began after her return to work in March 2019 and was worse after a day on which she worked. Her doctor recommended that she not work for the month of September 2019 and recommended on October 15, 2019 that she return to work one day per week while avoiding squatting and heavy lifting. She missed several weeks of work in September and October 2019 due to her hip problem.
[50] Ms. Constantinou was unable to work in 2019 for six weeks due to injuries she sustained that were unrelated to the dog bite. Therefore, she was able to earn income in 2019, but for her shoulder injury, for 46 weeks rather than 52 weeks. Her income for 46 weeks would have been $23,821.56 (using the weekly income amount of $517.86). She earned only $6,214 in 2019, leaving a shortfall attributable to the shoulder injury of $17,607.56.
[51] In late March 2020, Ms. Constantinou was injured at work when she helped lift a fallen resident from the floor. Her left shoulder problems were aggravated during this event. She also hurt her ribs. She was off work from then until the time of trial, a period of over a year. While her last day of work was the day that she helped the fallen resident, her inability to return to work is attributable to factors other than the injury she sustained during the dog bite incident. During that time, she participated in the care of her elderly father. She also experienced problems with her right hand that are not related to the shoulder injury. She does not seek compensation for loss of income between April 2020 to May 18, 2021.
[52] For the three months in 2020 that Ms. Constantinou could have worked, but for her shoulder injury, she would have earned $6,732.18. Her actual income from employment was $4,061, leaving a shortfall of $2,671.18.
[53] Mr. Gary Principe, a chartered professional accountant, provided opinion evidence about the quantification of economic damages. Counsel for the defendant acknowledged that he was qualified to provide this opinion evidence.
[54] Mr. Principe calculated Ms. Constantinou’s past loss of income by reference to the hourly wage and the number of hours that female PSW’s of Ms. Constantiou’s age make, on average, rather than on Ms. Constantinou’s actual wage and hours worked. He acknowledged that if Ms. Constantinou took time off for unrelated reasons, that it would be appropriate to adjust her past lost income accordingly. Because Ms. Constantinou did take time off for reasons unrelated to her shoulder injury, I reject Mr. Principe’s conclusion that she lost income in an amount between $88,050 and $91,900 between the date of her injury and the commencement of the trial.
[55] Mr. Principe also based his calculation of Ms. Constantinou’s loss of income on her income from all employment sources, according to her income tax returns. The evidence before me indicates that Ms. Constantinou’s 2016 income from employment came from two sources: Kingsway and her father’s company. Her employment with her father’s company ended in 2016 before the dog bite and there was no prospect that employment would be available to her again as her father’s business was sold. Therefore, Ms. Constantinou’s 2016 income she earned from her father’s business does not provide a proper basis upon which to calculate her anticipated income after 2016, absent her shoulder injury. For this reason also, I reject Mr. Principe’s conclusion that she lost between $88,050 and $91,900 between the date of her injury and the commencement of the trial.
[56] Based on my calculations that account for time that Ms. Constantinou took off work for reasons unrelated to the dog bite, I conclude that she is entitled to be compensated for past loss of income in a total amount of $59,818.90.
(ii) Future loss of income
[57] To assess the amount necessary to compensate Ms. Constantinou for future loss of income, I must assess the amount of her potential earning capacity in the future but for the dog bite, and compare it to her actual earning capacity to determine how much income she may fail to earn as a result of the dog bite and the resulting injury to her left shoulder. The standard of proof to be applied when considering these future events is the standard of “real and substantial possibility”: West v. Knowles, 2021 ONCA 296, at paras. 47-48, 74.
[58] Ms. Constantinou testified that she did not plan to retire before age 70 and that she worked with at least 2 other PSW’s who were older than 70. I accept that she did not plan to retire before age 70. She has been a strong and independent woman who enjoyed her work. But she has experienced a variety of medical challenges that have interfered with her ability to return to work, in addition to her shoulder injury. She injured her ribs when she fell on the dog run bar, she injured her hip when she fell in her home, and a condition related to her hands that will require corrective surgery has also prevented her return to work. These conditions have prevented her from returning to work for over a year and are expected to continue. There is no medical evidence to ground any conclusion as to when Ms. Constantinou would be able to return to work but for her shoulder injury.
[59] Melissa McDonald testified that the typical retirement age for PSW’s is 65 years of age. While some work longer, that is not typical.
[60] Ms. Constantinou’s 65th birthday was in August 2021. She makes no claim for loss of future income from the date of trial to the date of release of this judgment because her inability to work during that time is unrelated to her shoulder injury.
[61] I find that there is not a real and substantial possibility, given Ms. Constantinou’s physical challenges apart from her left shoulder, that she would work as a PSW after her 65th birthday, which is the typical retirement age in that physically demanding profession. She is now 65 years old and has not worked for over a year and a half for reasons unrelated to her shoulder injury. The plaintiff has adduced no medical evidence to support a conclusion that there is a reasonable and substantial possibility that she could be capable of returning to work but for her shoulder injury. The fact that she has been unable to work for a year and a half for reasons unrelated to her shoulder injury supports the contrary conclusion.
[62] As a result, there will be no award of damages for future loss of income.
(g) What is the cost of Ms. Constantinou’s future care needs?
[63] It is the plaintiff’s position that the present value of her future care needs is $440,000. Ms. Constantinou relies on the evidence of Beverly Cott, a life planner, and Gary Principe in support of this claim.
[64] Beverly Cott prepared a report about Ms. Constantinou’s future care needs. Ms. Cott was qualified as an expert in occupational therapy and life care planning. Ms. Cott met with the plaintiff for a total of about five and a half hours at Ms. Constantinou’s home. She also spoke with physiotherapist Brenda Lantz and chiropractor Dr. Brian Ferguson. She did not speak with Dr. Richards or Dr. Wasan, who is Ms. Constantinou’s family physician, or with Dr. Wang, who performed the shoulder surgery.
[65] It is the position of the defendant that Ms. Cott’s report is flawed and lacks medical support for its assumptions and conclusions. The defendant says that in the absence of any qualified medical support for Ms. Cott’s conclusions, the report should be disregarded in its entirety. The defendant argues that little more than a nominal amount should be awarded for Ms. Constantinou’s future care needs.
[66] In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 SCR 205, at para. 21-22, the Supreme Court of Canada noted the speculative nature of assessing damages for the cost of future care:
21 Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person’s best interest. Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates.
22 The resulting award may be said to reflect the reasonable or normal expectations of what the injured person will require. Jane Stapleton, “The Normal Expectancies Measure in Tort Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort measure of compensatory damages may be described as the “‘normal expectancies’ measure”, a term which “more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position the plaintiff to the destination he would normally have reached . . . had it not been for the tort”. The measure is objective, based on the evidence. This method produces a result fair to both the claimant and the defendant. The claimant receives damages for future losses, as best they can be ascertained. The defendant is required to compensate for those losses. To award less than what may reasonably be expected to be required is to give the plaintiff too little and unfairly advantage the defendant. To award more is to give the plaintiff a windfall and require the defendant to pay more than is fair.
[67] In short, I must determine what costs Ms. Constantinou may reasonably be expected to incur for future care to put her in the position she would have been in but for the dog bite, and then calculate the present cost of providing that care.
[68] The calculation of what costs Ms. Constantinou may reasonably be expected to incur for future care to put her in the position she would have been in but for the dog bite is challenging in this case for two reasons: 1) the cost estimates provided by Ms. Cott are inflated and in many respects lack a factual foundation in the evidence, which undermines the reliability of her report generally; and, 2) Ms. Constantinou has health challenges that are unrelated to the dog bite and that affect her ability to care for herself and her property, and it is necessary to determine what amount of compensation for future care costs is appropriate to place Ms. Constantinou in the position she would have been in but for the dog bite. Ms. Cott did not address this complicating feature.
[69] The factual foundation for Ms. Cott’s opinion is infirm in many respects. I will provide a few examples.
[70] Ms. Cott reported that Ms. Constantinou ran a small business of dog breeding, and that she runs a kennel. This is simply not true. The evidence is that Ms. Constantinou last bred her Bernese Mountain Dog in 2008, when the dog had a litter of two puppies, and that in April 2017 she acquired a Bernese Mountain Dog puppy. She does not and has not operated a dog kennel business of breeding and training since 2008.
[71] Ms. Cott’s estimate for home maintenance needs included snow removal from the 275-foot-long driveway 10 to 14 times per month for five months per year, or 50 to 70 times per year. Counsel for the plaintiff acknowledges that this amount of snow-clearing is excessive. Ms. Cott relied on Ms. Constantinou’s son, Nick, for information as to the snow clearing needs. Nick has a property maintenance business that offers snow-clearing services. Nick testified that before his mother’s injury, with a couple of exceptions, he cleared the driveway of snow and his mother shovelled the walkways. After the injury, he also shovelled the walkways. Therefore, there was no reason to attribute an annual expense for snow clearing the driveway to return Ms. Constantinou to the position she was in before the dog bite. Before the dog bite, she required the services of someone to clear her driveway because it is a 275-foot-long driveway. The only reasonable snow-clearing expense to compensate Ms. Constantinou for her injury is the additional cost of having the person who clears the driveway also clear the walkways. That would add about ten minutes to each service.
[72] Ms. Cott also estimated the future cost of care required by Ms. Constantinou in the event that she required further shoulder surgery. Ms. Cott based those costs on the possibility that Ms. Constantinou might require one or two additional surgeries, and so Ms. Cott multiplied the cost per surgery by 1.5, the average of one and two. In fact, the evidence of Dr. Richards is that there is a 10% chance that Ms. Constantinou may require one additional surgery. Ms. Cott’s multiplier is not supported by that evidence. Ms. Cott also calculated the mileage costs of a subsequent surgery and its attendant trips to the hospital on the assumption that the surgery would occur at Sunnybrook Hospital in Toronto. Ms. Constantinou’s first shoulder surgery was conducted at the MacKenzie Richmond Hill Hospital, which is considerably closer to Ms. Constantinou’s home than Sunnybrook Hospital. Ms. Cott’s assumptions about future surgery caused her to present an inflated estimate of the cost of such surgery.
[73] Ms. Cott did not consider and remove from her costing estimate the costs associated with medical challenges experienced by Ms. Constantinou that are unrelated to her shoulder injury. Ms. Cott’s conclusions are in part based on Dr. Ferguson’s chiropractic opinions about medical issues that have no basis in the evidence called at trial.
[74] While other examples of inflated costing exist, the foregoing is sufficient to explain why I cannot rely on Ms. Cott’s estimates of Ms. Constantinou’s future care costs, and prefer to assess those costs by relying on the trial evidence that I accept.
[75] For routine medical care, Ms. Cott allocated a one-time expense of $852.24 as reimbursement for mileage expenses to reflect the additional number of times that Ms. Constantinou has been required to see her family doctor since she sustained a rib injury. The evidence indicates that these additional visits were not related to the shoulder injury, and I reject this expense.
[76] Ms. Cott estimates that Ms. Constantinou will incur expenses of $4,640 per year for the rest of her life for physiotherapy, inclusive of mileage. The defendant says that the mileage expense is exorbitant as Ms. Constantinou is driving 112 kilometres in total for each visit and submits that she should receive her physiotherapy closer to home. I do not consider it unreasonable for a person who resides in a rural area to travel 56 kilometres to obtain healthcare. Ms. Constantinou has an established relationship of trust with her physiotherapist, and she should be permitted to retain that relationship. However, I consider the estimate of 31 sessions per year to be inflated. Ms. Constantinou’s regime of physiotherapy is bi-weekly, or 26 sessions per year. The cost for those sessions is $3,891.68 per year, including mileage.
[77] Ms. Cott suggests that Ms. Constantinou be awarded the costs of a one-time series of massage therapy, as this may help her and she has been unable to pursue that form of therapy in the past due to the cost. There is no evidence that massage therapy was recommended by any of Ms. Constantinou’s physicians and its value to her ability to manage her shoulder injury is entirely speculative. This cost is not reasonable.
[78] Ms. Cott recommends that Ms. Constantinou be awarded $4,085.20 to undergo six to eight occupational therapy sessions that will assist her to better perform her tasks of daily living. The suggested occupational therapy is not confined to confronting the limitations that Ms. Constantinou faces as a result of her shoulder injury and in any event, according to Ms. Cott, only two of those sessions are necessary. I find that one such session will be sufficient to equip Ms. Constantinou to make adaptations to her routines to assist her to cope with her shoulder injury. That is a one-time cost of $500.
[79] Ms. Cott calculated the costs of Ms. Constantinou’s past and future chiropractic care. There is no evidence that chiropractic care is necessary to address the sequelae of her shoulder injury. The chiropractor who has been treating Ms. Constantinou since she injured her hip did not testify. There is no indication that chiropractic care was recommended by any doctor who treated Ms. Constantinou’s shoulder injury. I reject the claim for costs related to chiropractic care.
[80] Ms. Cott notes that Ms. Constantinou uses regular strength pain relief medication about three times per week to control pain in her shoulder. The annual cost of this medication is $17.16. This is a reasonable expense.
[81] I have already made some reference to Ms. Constantinou’s anticipated housekeeping and home maintenance expenses. I accept that Ms. Constantinou’s ability to perform housekeeping and home maintenance tasks is compromised by the limited range of motion and strength of her left shoulder. She is right hand dominant, so these limitations apply generally to two-handed tasks. She will need assistance with heavy housework. Ms. Cott suggests that she will need about two to four hours of assistance per week with those housework tasks and this seems sensible to me. The annual cost of that assistance is $5,813.85, for which Ms. Constantinou should be compensated until she reaches 75 years of age, when it would reasonably be expected that she will need such assistance in any event, given her physical limitations apart from her shoulder injury.
[82] The outdoor home maintenance costs estimated by Ms. Cott to be $14,998.32 are significantly over-stated. I have removed any award for snowplowing of the driveway, which was a service that Ms. Constantinou required quite apart from her shoulder injury. I assess the annual cost for shovelling of the walkways and assistance with summer maintenance of the property at $5,000 per year until Ms. Constantinou reaches 75 years of age, when it is reasonably to be expected that she will need such assistance in any event.
[83] Ms. Constantinou will require pain management aids, such as heating pads, ice pads, a TENS unit, and a step stool with bar to permit her to access upper cupboards, at an annual cost of $50 per year. This is a reasonable expense. Ms. Cott also supports Ms. Constantinou’s wish to convert her existing bathtub to a walk-in bathtub because she finds it difficult to get out of the bathtub now, at a cost of about $18,000. This is not a reasonable expense. The evidence does not support the conclusion that Ms. Constantinou’s difficulty in transferring into and out of a bathtub is related to her shoulder injury, rather than to problems with her hip that inhibit her ability to squat, or to problems with her hands. Also, given Ms. Constantinou’s expressed desire to move in a few years, such an expense is unwarranted.
[84] Ms. Cott has estimated that Ms. Constantinou will need $2,860.28 per year to compensate for her inability to groom, train and show her dogs without assistance. Bathing and grooming the large dogs requires two hands, and I am satisfied that Ms. Constantinou will require assistance with that task and that she should be compensated for that until she is 75 years of age. I have determined a reasonable cost for bathing and grooming the dogs by reference to the evidence of Ms. Constantinou’s out-of-pocket expenses. Ms. Constantinou spent $1,330 over 26 months to groom two dogs, which amounts to about $600 per year. The evidence as to what assistance is required for Ms. Constantinou to train and show her dogs is vague and speculative. An award of $600 per year until Ms. Constantinou reaches 75 years of age, when it is reasonably to be expected that she would require assistance in any event to bathe any dogs she may then have, is a reasonable amount to compensate Ms. Constantinou for the future costs of caring for her pets.
[85] Ms. Cott estimated that Ms. Constantinou would need a total of $30,000 to compensate her for the costs she would incur in the event that she will require one or two shoulder surgeries. As previously noted, the costs multiplier of 1.5 adopted by Ms. Cott, being the average number of possible surgeries, is unwarranted given the evidence of Dr. Richards that Ms. Constantinou has a 10% chance of having to undergo one additional surgery. Adjusting Ms. Cott’s total expense calculation to conform with the evidence of Dr. Richards, the additional cost to Ms. Constantinou of one further surgery would be $20,000. I will subtract from that a forecast expenditure for occupational therapy, which has already been accounted for, resulting in a possible expense of $18,000. Given that there is only a 10% chance that this further surgery will occur, I will award $1,800 to compensate Ms. Constantinou for the possibility that she may have to undergo additional shoulder surgery.
[86] In summary, the costs of Ms. Constantinou’s future care are as follows:
One-time expenses: $2,300.00
Expenses until 75: $11,413.85 per annum
Expenses for life: $3,958.84 per annum
[87] Mr. Principe helpfully provided a table of the present value factors required to convert the anticipated future care costs to a present value for the purpose of calculating what award of damages is required to pay the costs of future care. I have applied the factors identified by Mr. Principe and award the amount of $197,712 for future care costs.
(h) What are Ms. Constantinou’s out of pocket expenses?
[88] Ms. Constantinou claims $21,666.85 for out-of-pocket expenses she has incurred because of the dog bite. This claim is supported by receipts. The expenses relate primarily to the costs of physiotherapy, medication, immobilizing/supporting devices, and dog grooming. The claim also includes chiropractic services.
[89] The chiropractic services were provided to respond to an issue with Ms. Constantinou’s hip. While those services continued in order to address alignment issues, I am not satisfied on a balance of probabilities that the alignment issues can be attributed to her shoulder injury. Counsel for the plaintiff acknowledges that the chiropractic expenses were incurred in part to treat unrelated injuries and seeks compensation for 50% of those expenses. Since I have concluded that none of the chiropractic services were related to Ms. Constantinou’s shoulder injury, I have deducted the entire amount attributable to those services. When the costs of chiropractic services and the mileage claimed to obtain those services is deducted from Ms. Constantinou’s claim for out-of-pocket expenses, the amount is reduced by $2,830.68.
[90] I am satisfied that Ms. Constantinou has paid out-of-pocket expenses in the amount of $21,036.91.
(i) What is the amount of OHIP’s subrogated claim?
[91] The plaintiff seeks an award of $7,866.96 to satisfy OHIP’s subrogated claim. That amount shall be awarded: Morsillo et al. v. Migliano et al. (1985), 52 OR (2d) 319 (Ont.Dist.Ct).
(j) Conclusion
[92] The plaintiff shall have judgment against the defendant as follows:
General damages: $100,000.00
Loss of past income: $59,818.90
Loss of future income: nil
Cost of future care: $197,712.00
Out of pocket expenses: $21,036.91
OHIP’s subrogated claim: $7,866.96
TOTAL $386,434.77
[93] If counsel are unable to agree on the amount of costs, I will receive written submissions which are to be provided to my assistant at jessica.sabiston@ontario.ca by December 10, 2021. The written submissions are not to exceed three pages in addition to any bill of cost and any offers to settle.
Justice J. Speyer
Released: November 19, 2021
NEWMARKET COURT FILE NO.: CV-18-136570
DATE: 20211119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wendy Constantinou
Plaintiff
– and –
Theresa Stannard
Defendant
REASONS FOR JUDGMENT
Justice J. Speyer
Released: November 19, 2021