COURT FILE NO.: CV-16-562721
DATE: 20221103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SOFIA RASKIN
Plaintiff
– and –
ANNA STEPANYAN and ANNA SHIFRIN
Defendants
Christopher Finlay, for the Plaintiff
HEARD: November 3, 2022
E.M. MORGAN J.
[1] In this one-day, undefended trial, the Plaintiff seeks damages for injuries sustained when she fell at the side entrance to a house at 51 Stonedene Boulevard, North York, ON. The house is owned by the Defendant Anna Stepanyan. The Plaintiff was visiting the house as a patient of the Defendant Anna Shifrin, who runs a dental practice from the premises.
[2] The affidavits of service establish that both Defendants were properly served with the Statement of Claim on October 31, 2016. Neither of them has ever responded to the claim. They were noted in default on October 4, 2018.
[3] The Plaintiff testified that the side entrance to the house is the one used to access Dr. Shifrin’s dental office. The Plaintiff explained that she tripped on the single-step threshold just outside the side door as she was exiting the house at the end of her appointment. It was a sunny day with pleasant weather. The Plaintiff was not given any drugs or other medication during her visit to the dentist.
[4] The Plaintiff submitted into evidence the expert report of an engineer – Jason Young of Advantage Forensic Inc. Mr. Young’s report demonstrates that the step at the side entrance of the house was 2 inches higher than the maximum height and 7 inches shorter in depth than allowed under the Ontario Building Code. According to Mr. Young, the step provided minimal room for foot placement on the single step threshold.
[5] On the basis of this expert evidence and the Plaintiff’s own testimony, as well as the photographs of the impugned doorway and step that are in the record, I conclude that the step’s state of negligent construction and disrepair caused the Plaintiff to fall as she exited the doorway. Her right foot twisted as it hit the asphalt in front of the step.
[6] The Plaintiff was 64 years old at the time of the accident. After the accident, she was taken to Mackenzie Richmond Hill hospital, where an X-ray showed that she had sustained a fracture of the 5th metatarsal on the right foot. Her foot was put in a boot-style cast, which remained on her foot for six weeks.
[7] The Plaintiff’s family physician, Dr. Oleg Livshin, has produced a medical report in which he says that even after boot/cast came off the Plaintiff continued to experience pain and swelling in the right foot and ankle. He prescribed physiotherapy and rehabilitation sessions, which she attended as recommended. After those sessions ran their course, she continued to have occasional treatments, but none of the treatments she has received have alleviated the ongoing right foot and ankle pain.
[8] Dr. Livshin concludes in his report that the Plaintiff suffers from chronic pain syndrome in her right foot and ankle. That chronic pain will likely always remain with her.
[9] The Plaintiff also saw Dr. Michael West, an orthopedic surgeon, who produced a medical-legal report. Dr. West is a graduate of University of Toronto Faculty of Medicine and is a Fellow of the Royal College of Surgeons of Canada. He is an experienced physician who has performed numerous medical-legal reports for insurance and judicial purposes over the years. He has signed Form 53, which Plaintiff’s counsel has submitted into the record.
[10] I accept Dr. West as an expert witness qualified to give opinion evidence on orthopedic medicine and injuries and impairments sustained by the Plaintiff whom he has examined.
[11] Dr. West reports that the Plaintiff has had unremitting symptoms for 4.5 years since the accident despite having had appropriate treatment. Like Dr. Livshin, he also concludes that the Plaintiff suffers from chronic pain syndrome. She will likely continue to require therapy and/or medication on an ongoing basis.
[12] It is Dr. West’s view that as a result of the injuries she sustained in her fall at the Defendants’ house/office, the Plaintiff is unable to do her own housework. She has also been unable to continue working at her former job working as a cook at a deli and prepared foods store, as her ability to remain on her feet and to walk without pain is limited.
[13] The Plaintiff resides in a two-room apartment with her 80 year-old husband. She testified that as a result of the pain and swelling in her right foot and ankle, she has experienced a loss of enjoyment of life. She now walks with a cane and a limp, and feels pain every day. She has had to retire from her job at the Bathurst Market grocery store and deli.
[14] As a result of all of this, the Plaintiff has lost her source of income. She has also been forced to pay for housekeeping services and attendant care as well as various medical and medication expenses and associated travel expenses.
[15] In addition, the Plaintiff has suffered a reduction in her enjoyment of life. She testified that as a result of her injuries, she has been unable to engage in her former social, recreational, family, and other activities, including dancing, which she previously enjoyed. She has to wear slippers all of the time rather than shoes.
[16] The Plaintiff claims special damages under a number of headings. This includes payments for medical and rehabilitation services of $3,106, past and anticipated housekeeping services of $25,000 (calculated at 17 visits per year for 8 years and then discounted to account for age, contingencies, and spouse sharing the benefit), and subrogated OHIP payments of $2,834.02.
[17] In addition, the Plaintiff claims 6 weeks of lost wages for a total of $2,040.00. The Plaintiff has included in the evidentiary record the necessary documentation supporting these claims of loss.
[18] I accept these lost wages and special damages claims. They are founded on the evidence in the record and are reasonable.
[19] In terms of general damages, the Plaintiff seeks $35,000 in compensation for her pain and suffering. Plaintiff’s counsel submits several comparable cases, all of which entail metatarsal injuries with ongoing pain much like what the Plaintiff suffers.
[20] Needless to say, the case law on damage awards is very fact specific, with each claim demanding a reading that is sensitive to its specific context. The awards in the cases cited by Plaintiff’s counsel range from a low of $20,000 awarded by a British Columbia court [Myatt v. Hilicza, 2000 BCSC 1149] to a high of $50,000 in a case where the plaintiff sustained a foot injury requiring surgery and was unable to return to her previous level of activity of walking, shopping, and dancing [Chow v. Schuller, 2014 BCSC 309].
[21] The middle range of the cases is reflected in a case where the plaintiff, like here, incurred a residual mobility disability and ongoing pain and suffering which could be controlled through continued treatment and medication. The British Columbia Court of Appeal reviewed the level of damages and concluded that that $35,000 reflected the appropriate compensation: McMillan v. Lefleur, [1992] BCJ No 401. Plaintiff’s counsel submits that this is the most closely analogous case to the case at bar, and I would agree.
[22] The Defendants are liable to the Plaintiff for special damages in the amount of $30,940, lost wages in the amount of $2,040, and damages for pain and suffering in the amount of $35,000. Accordingly, the total amount of damages owed by the Defendants, jointly and severally, to the Plaintiff comes to $67,980.
[23] Defendants shall also pay the Plaintiff’s costs in the amount of $20,000, inclusive of all fees, disbursements, and HST. This request by Plaintiff’s counsel is modest under the circumstances and is supported by the Bill of Costs filed.
Morgan J.
Released: November 3, 2022
COURT FILE NO.: CV-16-562721
DATE: 20221103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SOFIA RASKIN
Plaintiff
– and –
ANNA STEPANYAN and ANNA SHIFRIN
REASONS FOR JUDGMENT
Released: November 3, 2022 Morgan J.