Overview

[1] The plaintiff seeks default judgment.

[2] The defendant was a member of the College of Chiropodists of Ontario. He treated and performed surgery on the plaintiff in 2014. The plaintiff pleads that, because of the defendant’s treatment and surgery, the plaintiff sustained serious and permanent damage to both of his feet.

[3] I am satisfied that the defendant was properly served with the statement of claim and that he failed to deliver a statement of defence within the timelines provided by the Rules of Civil Procedure, R.R.O. 1990, Reg.194. The evidence shows that he was served on June 17, 2020. The plaintiff’s counsel appropriately took into account the Ontario government’s suspension of time limits as a result of the COVID-19 pandemic and noted the defendant in default on October 28, 2020.

[4] The plaintiff pleads negligence, negligent misrepresentation, breach of fiduciary duty and breach of contract. The plaintiff pleads that the defendant persuaded him to undergo stent insertion surgery, which was both unnecessary and harmful, without informed consent. The plaintiff pleads that the defendant did not advise him of any risks associated with the procedure or inform him of any alternative or less invasive treatment options. The plaintiff pleads that he would not have undergone the surgery had he known that it could result in pain and disability. The plaintiffs pleads that, following the surgery, he noticed no improvement in the condition of his feet and that, in fact, they got worse, in that he began to experience a different type of pain and rigidity in both feet. The plaintiff pleads that in 2017, the stents were removed by an orthopaedic surgeon. The plaintiff pleads that, as a result of the conduct of the defendant, he suffered serious and permanent injuries to both feet and legs, including pain, loss of mobility and loss of function.

[5] I am satisfied that the facts alleged in the statement of claim entitle the plaintiff to judgment: Rule 19.06 of the Rules of Civil Procedure.

General damages

[6] The plaintiff seeks general damages in the amount of $180,000. He says he has suffered serious and permanent injuries to both feet. He is in his early 30s and works in a physically demanding job. He says he has also suffered emotional upset, as a result of the defendant’s conduct and because of information that has come to his attention about the defendant’s background and similar cases involving the defendant and other patients.

[7] The plaintiff relies on several cases, including two involving the same defendant, one in which Kershman J. awarded $140,000 in general damages to an older and less active person and one in which I awarded $120,000 to an older and less active person, in which the surgery had been performed on only one foot.

[8] I accept the plaintiff’s evidence that he suffered pain and discomfort as a result of the defendant’s treatment and, in particular, the stent insertion surgery. I consider it to be significant that he was required to undergo a second surgery to remove the stents. I accept that the plaintiff continued to suffer pain following the corrective surgery. I accept that it was distressing for the plaintiff to learn, after-the-fact, about the defendant’s reputation and treatment of other patients. It does not appear from the evidence that the plaintiff’s injuries are having any effect at present on his ability to perform his duties at work, although I accept that this could reasonably happen in the future. Having considered the plaintiff’s evidence, I award the plaintiff general damages of $150,000.

Prejudgment interest

[9] The plaintiff asks for prejudgment interest on the general damages in the amount of 5 per cent, in accordance with Rule 53.10 of the Rules of Civil Procedure.

[10] I have considered MacLeod v. Marshall, 2019 ONCA 842, in which the Court of Appeal said that the trial judge in an historic sexual assault cause should not have applied the 5 per cent but should have considered the factors in s. 130(2) of the Courts of Justice Act, R.S.O. 1990 c. C.43 (“CJA”). The 5 per cent rate in Rule 53.10 is obviously much higher than the prejudgment interest rates prescribed by the CJA for the past seven years. However, unlike MacLeod, the plaintiff’s claim does not date back dozens of years. The legislature has not seen fit to amend s. 128(2) of the CJA or Rule 53.10. There was no one before me on this default motion to argue what interest rate should be applied, if not the 5 per cent. For these reasons, I award the plaintiff prejudgment interest on the general damage award in the amount of 5 per cent from the date of his surgery, March 3, 2014, to the date of this decision and fix prejudgment interest at $62,000.

Past loss of income

[11] I accept the evidence in paras. 47 to 56 of the plaintiff’s affidavit and fix his past loss of income at $81,624. His 2020 T4 form, filed following the hearing of the motion, shows he had no loss of income in 2020.

[12] The plaintiff shall have prejudgment interest on the past loss of income at 1 per cent. This is half of the 2 per cent prejudgment interest rate applicable when the statement of claim was issued in the fourth quarter of 2019. (Borland v. Muttersbach, 1985 CanLII 2134 (ON CA), 1985 CanLII2134 (ON CA.) I fix this prejudgment interest at $6,250.

Future loss of income

[13] The plaintiff seeks future loss of income on the basis that he is in his early 30s and has always worked in carpentry or similar labour and construction-related jobs.

[14] The plaintiff argues that, because of the injury to his feet, he likely will not be able to work in the construction field beyond the age of 45, that he will then be required to retrain, and that it then might take him several years to increase his income to its previous level. The plaintiff seeks damages representing two years salary for the retraining period and then roughly half of his salary for each of the next three years, for a total of $240,000.

[15] There is some medical evidence to support the plaintiff’s claim for loss of future income. In 2016, an orthopaedic surgeon had suggested the plaintiff might be required to consider work of a different nature. This was before the plaintiff had the stents removed. However, after the stents were removed, the plaintiff has been required to undergo annual corticosteroid injections to his feet to relieve pain. He is continuing to suffer pain in both feet. He has been told that he may require further surgery in the future.

[16] The plaintiff says his employer has been understanding but that he worries that he could lose his job if his disability starts to interfere significantly with his performance.

[17] Based on the evidence before me, I find there is a reasonable and substantial risk that the plaintiff will not be able to continue to work in the physically demanding area of construction in the long term, because of the injury to his feet.

[18] To assess the plaintiff’s future income loss, I have accepted the plaintiff’s premise that, if he is no longer able to work in construction, he may be required to retrain and that, as a consequence, he may be out of the workforce for a period of time. I do not consider his proposed scenario of a two-year college course to be unreasonable. I do not accept, however, that the plaintiff would not be able to earn any income during this two-year period, either on a part-time basis or during the summer months. I accept that it is reasonable to assume that the plaintiff’s income post-retraining may be lower for a period while he gains experience and seniority. I find that the plaintiff’s physical limitations and his age at the time he would be re-entering the workforce could also reasonably impact his employability.

[19] I have considered a number of contingencies: the foot problem that prompted the plaintiff to seek treatment from the defendant could have forced the plaintiff to leave his construction job even if left untreated; the demands of construction work could have prompted a mid-life career change for the plaintiff even if he had not had any problems with his feet, regardless of the cause; despite his injuries, the plaintiff may continue to work in construction until he decides to retire.

[20] I have also noted the following: (a) The plaintiff’s claim of $240,000 for future income loss is based on an assumed annual income of $70,000, which is roughly the plaintiff’s average annual income from 2014 to 2020. It does not, therefore, assume that his income will rise over the next 15 years and may, therefore, be somewhat understated; and (b) There was no evidence before me to assist me to determine the present value of a loss the plaintiff would not sustain for another 15 to 20 years.

[21] A future loss such as this cannot, obviously, be calculated precisely or to the penny. Having taken into account all of these considerations, I award the plaintiff damages for future loss of income/loss of earning capacity in the amount of $180,000.00.

Costs

[22] I have reviewed the bills of costs submitted by the plaintiff’s counsel. I fix the plaintiff’s costs at $8,000, inclusive of disbursements and HST. I am satisfied that in his treatment of the plaintiff, and then in not responding to the plaintiff’s statement of claim, the defendant has engaged in conduct worthy of sanction. (Davies v. Clarington, 2009 ONCA 722.)

Date: December 6, 2021

COURT FILE NO.: CV-19-82229

DATE: 20211206

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Joseph Burke, Plaintiff

AND

Pierre Dupont, Defendant

COUNSEL: David Cutler, for the Plaintiff

Self-represented Defendant

reasons for judgment

Madam Justice Heather J. Williams

Released: December 6, 2021

Burke v. Dupont, 2021 ONSC 7988

Case Summary

Overview

General damages

Prejudgment interest

Past loss of income

Future loss of income

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 4

Legislation 2