COURT FILE NO.: CV-18-00001440
DATE: 2022/11/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Connie Alice Cornwall, Blaine Ross Cornwall and Brent Robert Cornwall
AND:
Rashed Mohamed Mahran Al Bloushi, Tri-Us Property Management Inc., Textile Waste Diversion Inc., Canadian Community Support Foundation and The Corporation of the City of London
BEFORE: Justice A. K. Mitchell
COUNSEL: V. Edgar and M. Rynen, for the plaintiffs
HEARD: October 20, 2022
REASONS FOR JUDGMENT
Overview
[1] On July 28, 2017, the plaintiff, Connie Cornwall, suffered a fractured right shoulder when she slipped and fell on broken glass while traversing the paved area between her parked vehicle and a donation bin located on property municipally known as 1009 Wonderland South, in the City of London (the “Property”).
[2] The City of London (the “City”) is the owner of the Property. The defendant, Textile Waste Diversion Inc. (“Textile”), was, at all material times, the owner of the donation bin. Textile placed the bin on the Property without the City’s knowledge or permission.
[3] In this action, Ms. Cornwall claims damages jointly and severally against the defendants arising from the injuries she suffered in the fall. Specifically, Ms. Cornwall claims that since the incident, she is unable to carry on her normal tasks of living and employment. She claims loss of present and future income and loss of competitive position in the marketplace. Ms. Cornwall claims she will incur future costs for medical, house and home care assistant and avocational expenses as well as special damages for drugs, transportation, housekeeping, clothing, personal and other related expenses.
[4] Pursuant to the provisions of the Family Law Act (the “FLA”), Ms. Cornwall’s sons, Blaine and Brent Cornwall, claim damages against the defendants for the loss of care, guidance and companionship that they might reasonably have expected to receive from their mother had the incident not occurred.
[5] This action was commenced by statement of claim issued against, among others, Textile, on July 10, 2018. On March 26, 2019 the statement of claim was amended to add the City as a party defendant.
[6] By Order of Gorman J. dated February 5, 2021, Textile’s former solicitors were removed as solicitors of record. By Order of George J. (as he then was) dated July 30, 2021, Textile’s statement of defence was struck.
[7] The plaintiffs’ claims against Textile were ordered to proceed to trial on an uncontested basis pursuant to the Order of Gorman J. dated March 11, 2022. By the time of trial, the action had been dismissed against all but the City and Textile. At the commencement of the uncontested trial and at the Court’s request, plaintiffs’ counsel confirmed that the action was in the process of being dismissed against the City on a without costs basis. Brent Cornwall’s FLA claim was abandoned at the outset of trial.
[8] The uncontested trial proceeded only with respect to the claims of Ms. Cornwall and Blaine Cornwall. The sole witness at trial was Ms. Cornwall. With respect to the issue of liability, portions of Textile’s discovery evidence were read into the record.
Factual Matrix
The Plaintiffs
[9] At the time of the incident on July 28, 2017, Ms. Cornwall was 69 years of age. At trial, Ms. Cornwall was 75 years of age.
[10] Prior to the incident, Ms. Cornwall and her husband spent four months each winter at their Florida residence. While in Florida in March 2016, Ms. Cornwall’s husband became ill and he died on September 26, 2016.
[11] Following his father’s death, Blaine moved in with Ms. Cornwall. At the time of trial, Blaine was 39 years of age and employed on a full-time basis.
The Slip and Fall Incident
[12] On July 28, 2017, Ms. Cornwall and Blaine attended at the Property to deposit some items of clothing into the donation bin. The day was clear and the area around the bin was paved and dry. While walking from her parked vehicle to the bin, Ms. Cornwall slipped and fell on pieces of broken glass scattered on the ground in front of the bin.
[13] Ms. Cornwall was taken by ambulance to the hospital. X-rays confirmed she had suffered a humerus fracture of her right arm. Ms. Cornwall testified that prior to the incident, she had no medical, mobility or visual issues. Ms. Cornwall is right-hand dominant.
Medical Evidence
[14] In support of her damage claims, portions of Ms. Cornwall’s medical records were entered as exhibits at trial. Ms. Cornwall was assessed by Dr. Nina Suh, orthopedic surgeon, on September 20, 2017 - approximately two months post-incident. In her clinic note, Dr. Suh reports:
Connie Cornwall is a 70-year-old female with a right humerus fracture. She is doing quite well and fracture is well-healed at this time. At this point, we are going to initiate range of motion of the shoulder. She guards significantly and she does have approximately 20 degrees flexion contracture of the elbow because she has maintained herself in a sling for too long. I warned her about making sure to try to get the elbow extended as well as starting the pendular exercises to increase to forward flexion as well as abduction. I will see her back after 6 weeks’ time for clinical reassessment.
[15] Following her assessment of Ms. Cornwall on May 9, 2018, Dr. Suh further reported:
This is a 70-year-old lady who 10 months ago sustained the above injury [right proximal humerus fracture malunion in varus position]. She has been progressing very nicely. I think she has hit a plateau and can elevate through glenohumeral joint to 60 degrees but has a total shoulder including scapulothoracic motion elevation of 95 degrees. Cuff examines to be intact. Normal neurology with intact deltoid, motor and sensory function.
X-rays today show fracture to be well-healed. She actually has no pain through waist level activities. She is doing very well.
I explained to her and have set realistic goals today. I think this is as good as it gets, and functionally, she has no limitation and she just needs to move things from the top shelf down to the bottom instead of the left hand to reach higher up. She is happy with this. I do not think an open reduction internal fixation at initial onset would have changed things as that would have caused stiffness, and ultimately, if she gets to the point where she is now, it would have been classified as a good outcome. I have explained to her much further into the future if she gets problem, we may consider a total shoulder joint replacement. She is very happy with this plan…[emphasis added]
[16] On July 14, 2018, Dr. John Bennett, radiologist, reports on an ultrasound imaging of Ms. Cornwall’s right shoulder and diagnoses a rotator cuff tear.
[17] On June 17, 2019, imaging of Ms. Cornwall’s right shoulder was conducted. Deformity of the proximal humerus bone relating to the fracture was noted, as well as mild degenerative changes of the acromioclavicular joint. All tendons appeared intact.
[18] Most recently on April 29, 2020, Ms. Cornwall was assessed by Dr. Marie-Eve LeBel. In her clinical assessment report, Dr. LeBel writes:
[Ms. Cornwall] sustained a right proximal humerus fracture involving the greater tuberosity in the neck in 2017. She was treated conservatively and followed by my colleague, Dr. Suh. She has always had stiffness since the break. I told her that this is normal and to be expected. Pretty much anyone with proximal humerus fracture will likely not recuperate full range of motion.
It appears that this patient is complaining of pain, especially at night. She even gets headaches secondary to that pain in the shoulder. She seems to have pain in the trapezius. She has never tried massage therapy, acupuncture or muscle relaxants.
Her range of motion is not really good, but it appears to be close to 90° of elevation. Internal rotation is limited to the bottom. There are no recent x-rays. Old x-rays have shown a slightly varus position of the proximal humerus and that has been the same since the fracture. The overall alignment is pretty much acceptable.
I explained to Mrs. Cornwell (sic) that having shoulder stiffness is common with proximal humerus fractures. This is not unusual. I am not sure if she will be able to regain any motion at his as it has been quite some time since the injury. Having said that, we sometimes get good surprises. I have suggested that she try to find some yoga exercises on the Internet. She can continue using heat and ice, as they seem to be helpful for her. She can certainly use rollbacks., Which is a mild muscle relaxant sold over the counter. This might allow her to sleep better at night. Doing massage therapy at home with a tennis ball on the wall and rolling on it may allow her to relax her muscles more. I am not sure if doing subacromial injections or glenohumeral injections would be helpful, but this would depend on her x-rays as there are no recent x-rays. In the end, Ms. Cornell (sic) is interested to see me in clinic whenever it is possible to do so. We will do x-rays of her shoulder and we will see how she is doing at that point. She was happy with this.
[19] Surgery has not been recommended by Ms. Cornwall’s treating physicians.
Employment History
[20] Prior to the “slip and fall” incident on July 28, 2017, Ms. Cornwall was employed as a real estate broker with Sutton Group Realty. She described working primarily as a “buyer’s agent” although had some of her own listings. She testified that following the incident she was off work for a period of approximately 8-10 months and returned to work in April/May 2018. She says her ability to perform the tasks of a realtor were compromised as a result of the pain associated with her injuries. She described being unable to pound signs into front lawns and move furniture to stage properties for sale.
[21] Ms. Cornwall’s tax returns for the years 2014 through 2021 were adduced as evidence at trial. They reveal that Ms. Cornwall had various income sources including pension (old age security, CPP, spousal transfer, and employment-related pension), RRSP and commission income. With respect to gross commission/business income over this period, Ms. Cornwall reported:
2014 - $1,260
2015 - $19,084
2016 - $52,065
2017 - $50,133
2018 - $28,965
2019 - $40,577
2020 - $34,942
2021 - $24,828
[22] No evidence was adduced with respect to Ms. Cornwall’s commission income received in the 6 months preceding her retirement in June 2022.
[23] Ms. Cornwall testified that as a result of being off work for 8-10 months following the incident, she lost clients and did not recover her client base. She continues to suffer from fatigue and chronic pain relating to her arm/shoulder injury which she says prevents her from working with the same energy and at the same level as pre-incident.
Living Arrangements
[24] As was the situation prior to the incident, Ms. Cornwall continues to reside with her son. During the summer of 2017 and prior to the incident, Ms. Cornwall purchased a smaller home. The purchase transaction was completed in September 2017.
[25] In August 2021 Ms. Cornwall sold her home and she purchased and together with Blaine moved into a condominium where she continued to reside at the time of trial.
Analysis
Consequences of Default
[26] Rule 19.01(2) of the Rules of Civil Procedure (the “Rules”) provides that where a statement of defence of a defendant has been struck out, the plaintiff may on filing a copy of the order striking out the statement of defence, require the registrar to note the defendant in default. The Rules provide for consequences to a defendant noted in default. Specifically, a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim.
[27] It does not appear that Textile was ever noted in default. For the sake of completeness, Textile is hereby noted in default. Consequently, Textile is deemed to admit all allegations of fact contained in the amended statement of claim.
[28] Unlike the issue of liability, where a defendant has been noted in default, unliquidated damages are not assumed. That is, in a default hearing such as this, facts going to the issue of liability are deemed to be true; however, facts going to the issue of damages must be proven.[^1]
Liability
[29] The plaintiffs allege that as “occupier”, Textile owed a duty to Ms. Cornwall to maintain the area around the bin and keep her safe. The liability of Textile rests on Textile coming within the definition of “occupier” pursuant to s. 2 of the Occupiers Liability Act[^2]. The threshold legal issue as to whether Textile as the owner of the donation bin is an “occupier” for purposes of the OLA must first be determined.
[30] Section 1 of the OLA defines an “occupier” at s. 1 to include “a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises…”.
[31] The common law confirms that the imposition of obligations under occupiers’ liability depends on control rather than title. In Great Lakes S.S. Co. v. Maple Leaf Milling Co Ltd.[^3] at p. 183 the court stated:
“Control” is defined by Lord Denning in Wheat v. E. Lacon & Co. Ltd. and at 578:
... wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an "occupier" and the person coming lawfully there is his "visitor" ...
Another enunciation in the same case came from Lord Pearson at 589:
The foundation of occupier's liability is occupational control, i.e., control associated with and arising from presence in and use of or activity in the premises.
[32] Regardless of ownership, it is the person with possession that has the ability to exercise care for the safety of those who visit the premises.[^4] According to Goodman J. in Candy, responsibility for the premises falls on the person “who is in actual occupation or possession of them for the time being, whether he is the owner of them or not. For it is he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.”^5 However, one’s status as an occupier does not require exclusive possession and control, and a single property may have more than one occupier.[^6]
[33] In Couch v. McCann[^7], the defendant had a contractual right to use a barn. He hired two auctioneers to conduct the sale of furniture from the premises. While the auctioneers had intended to hold the auction outside the barn, bad weather caused the auction to be moved indoors. The barn’s beams were infested with dry rot, the floor collapsed, and the plaintiffs were injured. The Court of Appeal upheld the trial judge’s decision to classify both the defendant, McMann, and the auctioneers as occupiers. McCann’s liability rested on his responsibility for holding the auction and thereby inviting the plaintiffs onto the premises and displaying furniture throughout the barn. By extension, the auctioneers were also found to have “control” because they advertised the event, were in charge of the auction, and directed customers indoors. The court found the defendants to have “sufficient control to make them joint occupiers”.[^8]
[34] Here, Textile placed the donation bin on the Property without the City’s permission and invited members of the public onto the Property to access the bin. Moreover, Textile assumed responsibility for maintaining the bin and the area around the bin by employing independent contractors tasked with inspecting the premises around the bin on a regular basis (daily, or every other day). Textile responded to complaints regarding the condition and maintenance of the area around their bins. Last, Textile placed a decal on the bin which read “Our Bins are Maintained By: Textile Waste Diversion”.
[35] The fact that the City owned the Property does not affect the liability of Textile as a joint occupier. Similar to the auctioneers in McCann, Textile advertised their services, (implicitly) invited customers to donate, and claimed responsibility for the area’s maintenance as per the evidence of Ms. Siggia. Although the City did not invite Textile to place the donation bin on the Property, the relationship between the City and Textile is not a determinative factor with respect to the determination of Textile’s “control” over the property.[^9]
[36] I find that Textile’s conduct is sufficient to meet the test for “occupier” of the Property established by the jurisprudence reviewed above. Textile is, therefore, bound by the statutory duty of an “occupier” established by the OLA.
[37] Having found that Textile as “occupier” owed a duty to Ms. Cornwall to maintain the Property and specifically the area around the donation bin, I must now determine whether Textile breached such statutory duty of care. As a result of being noted in default and by virtue of rule 19.02(1)(a), Textile is deemed to have admitted the following allegations contained in the amended statement of claim:
(a) at all material times Textile owned and was responsible for the donation bin and was responsible for the maintenance of the Property;
(b) Textile failed to ensure that the Property was kept in a safe and proper condition;
(c) Textile failed to oversee its employees, agents and independent contractors responsible for the day-to-day maintenance of the Property;
(d) Textile failed to implement and maintain any procedure or proper procedure for the frequent examination and upkeep of the Property;
(e) Textile failed to employ agents, employees and contractors to supervise and maintain the Property;
(f) Textile failed to monitor the condition of the Property;
(g) Textile failed to provide a safe means of passage for Ms. Cornwall on the Property;
(h) Textile failed to implement and maintain any procedure or proper procedure to ensure that the donation bin was safely accessible to Ms. Cornwall;
(i) Textile allowed a dangerous and unsafe condition to exist and/or remain on the Property;
(j) Textile failed to take any or any reasonable care to see that Ms. Cornwall would be reasonably safe when using the Property and attending the donation bin;
(k) Textile failed to take any active measures, whether by periodic or other examination and inspection, test or otherwise to ensure the premises were in a reasonably safe condition, were not dangerous or had any condition which did not offer safe footing;
(l) Textile failed to warn Ms. Cornwall of the hazardous and dangerous conditions of the Property;
(m) Textile failed to notice the hazard and dangerous condition of the Property when it knew or ought to have known that the presence of such a condition caused danger to Ms. Cornwall while on the Property; and
(n) Textile failed to take all or any reasonable care to prevent an injury or damage to Ms. Cornwall when it knew or ought to have known of the hazardous and dangerous condition of the Property.
[38] The foregoing deemed admissions of negligence negate the need to have regard to the discovery evidence of Ms. Siggia. I find that Textile, as “occupier”, breached its duty owed to Ms. Cornwall to maintain the area around the donation bin and keep it in a reasonably safe condition and further find that such breach caused Ms. Cornwall to slip on broken glass and fracture her right shoulder.
[39] With respect to the issue of Ms. Cornwall’s contributory negligence, I am required to accept as fact that Ms. Cornwall “walked in a careful and prudent manner towards the donation bin” and, further, that Textile is “solely” responsible for the plaintiffs’ damages as alleged in the amended statement of claim.
Damages
[40] On default, proof of unliquidated damages requires supporting evidence. Damages have to be proven.[^10]
(i) General Damages
[41] Ms. Cornwall claims general damages in the range of $100,000 - $125,000. Counsel referred me to a line of cases in support of this range. Plaintiffs’ counsel properly conceded that these cases involved situations where the plaintiff’s arm/humerus fracture required surgery. This is not the case for Ms. Cornwall.
[42] Having regard to the testimony of Ms. Cornwall, I accept that she now has reduced strength and range of motion in her right arm as well as stiffness and that such impairments are permanent. She continues to feel pain, especially at night. However, has no pain when engaging in waist-level activities as reported to Dr. Suh in May 2018.
[43] Immediately after sustaining the injury to her shoulder, Ms. Cornwall experienced significant pain, difficulty sleeping and performing day-to-day tasks. However, as noted by Dr. Suh two months and again 10 months post-incident, Ms. Cornwall’s fracture was “well-healed”.
[44] Ms. Cornwall testified that she believes she also suffered a torn rotator cuff when she fell. However, the medical report of Dr. Suh from May 19, 2018 does not support this belief. It would appear that the first time a rotator cuff tear is mentioned in the medical reports is July 14, 2018 – almost one year post-incident. I am therefore unable to conclude that the tear is related to the slip and fall.
[45] The plaintiffs retained occupational therapist, Joseph Morgan, to conduct an in-home assessment of Ms. Cornwall on July 25, 2018 – one year following the incident and 4 years prior to trial. Mr. Morgan’s report was filed as an exhibit. Mr. Morgan did not testify at trial. The purpose of the assessment was to identify Ms. Cornwall’s pre-accident activities of daily living, assess current physical and functional abilities and assist in determining functional limitations as a result of the fall on July 28, 2017.
[46] I find Mr. Morgan’s expert opinion evidence to be dated and of little assistance in assessing Ms. Cornwall’s functionality today.
[47] Prior to the slip and fall incident, Ms. Cornwall described herself as the “Energizer bunny”. After the fall, she says she has been fatigued and no longer has any “pep”. She has curtailed her social and recreational pursuits and decided to retire early. She says she had no intentions of retiring but for the impact of the injuries on her ability to continue working.
[48] Ms. Cornwall prepared a list of activities and tasks she is no longer able to or is restricted in her ability to perform.[^11] She read this list into the record during her testimony at trial. Ms. Cornwall reports greater impairment than the treating physicians reported in 2018. She testified that she no longer attends car shows nor gardens. She sold the Florida residence because she could no longer maintain the property.
[49] Ms. Cornwall reports reduced strength in her right arm which is supported by Mr. Morgan’s assessment of her grip strength in July 2018. Mr. Morgan assessed Ms. Cornwall as having 30-pound grip strength in her right hand and an average of 45-pound grip strength in her left hand. Mr. Morgan noted that Ms. Cornwall’s overall grip strength placed her in the 10th percentile of her closest age group (65-69 years).
[50] However, many of the tasks with respect to which Ms. Cornwall struggles to complete with her right hand may be completed with her left hand, for example, hair brushing, toileting, walking her dogs, and reaching above her head to access items and objects. Although Ms. Cornwall reports being unable to carry groceries or any weight using her right arm, her 30- pound grip strength suggests otherwise.
[51] I am not persuaded that Ms. Cornwall’s self-reported chronic pain and fatigue and reduction in right arm grip strength and range of movement materially reduces her overall quality of life to the same extent found with respect to the plaintiffs in the case law referred to me in support of an award of general damages in the range of $100-125,000 as suggested by plaintiff’s counsel.
[52] I find that an award of general damages in the amount of $65,000 is appropriate in the circumstances of this case.
(ii) Past Income Loss
[53] The plaintiff did not retain a forensic accountant to assist the court in arriving at a precise quantification of Ms. Cornwall’s income loss claims. Consequently, the court’s damage awards are similarly imprecise.
[54] I have taken into account Ms. Cornwall’s pre and post incident commission income trending and have balanced the effects of the pandemic on the residential real estate market which led to soaring home prices in London (thereby impacting negatively on buyers’ ability to purchase) and other factors (including Ms. Cornwall’s advancing age) which affected the ability of Ms. Cornwall to earn commission income as a realtor (and particularly as a “buyer’s” realtor). I find that but for the injuries suffered in the incident, Ms. Cornwall had the ability to earn $50,000 annual gross commission income.
[55] I award damages for past income loss for the period July 28, 2017 through October 20, 2022 totaling approximately 5.25 years at $50,000 per year = $262,500 less commission income earned during this same period equal to $108,253[^12][^13] = $154,247.
(iii) Future Income Loss
[56] Ms. Cornwall retired in June 2022. I find that but for the injuries suffered in the slip and fall, Ms. Cornwall would have worked until age 80. She became the sole income earner when her husband died in 2016 and her commission income increased significantly in the year following his death. It is realistically possible that Ms. Cornwall would have continued to work for a further ten years post-incident.
[57] Accordingly, Ms. Cornwall is entitled to $250,000 in damages to compensate her for future income loss as a result of having to retire 5 years earlier than expected.
(iv) Special Damages
[58] Ms. Cornwall claims reimbursement and for the following out-of-pocket expenses:
(a) prescription medications: a summary of medications dispensed to Ms. Cornwall during the period July 29, 2017 to August 5, 2017 indicates Ms. Cornwall paid $8.09 out-of-pocket[^14];
(b) kitchen renovations: when prompted by her counsel, Ms. Cornwall accepted the sum of $20,139.75 as an accurate total of all expenses paid to renovate the kitchen in the new home to accommodate her physical impairments. The evidence filed does not support reimbursement of these costs. Less costly accommodations were available to deal with her inability to reach overhead. For example, Ms. Cornwall could have stored her less frequently used items on the upper shelves and accessed these items with a stool or stepladder when needed. Moreover, Ms. Cornwall sold this residence and purchased a condo in August 2021. Presumably, the home’s value was enhanced by the cost of the kitchen renovations and Ms. Cornwall recouped these expenses upon the sale of the home;
(c) expenses paid to “Dan” to drive a vehicle to Ms. Cornwall’s Florida residence: these expenses are not compensable because I am unable to conclude on a balance of probabilities that this expense is related to the injuries suffered by Ms. Cornwall in the slip and fall. It is equally probable that these costs were incurred because Ms. Cornwall’s spouse had driven the vehicle to Florida in prior years. Ms. Cornwall did not give evidence that she was responsible for driving the vehicle to Florida in years prior to the incident;
(d) cost of the flight for Blaine to accompany Ms. Cornwall to Florida: this expense is not compensable for the same reasons expressed in (c) above;
(e) lawn care expense for the months of August and September, 2017: Ms. Cornwall claims she paid $452 for lawn cutting services during the two months following the incident. Ms. Cornwall testified that pre-incident she was responsible housecleaning while Blaine was responsible for lawn maintenance and snow shoveling. No explanation was provided as to the reason Blaine did not undertake lawn maintenance during the months of August and September 2017. I find that this amount is not compensable; and
(f) cleaning expenses paid to “Clean Freak Home Services”: Ms. Cornwall seeks reimbursement for expenses paid for house cleaning and personal assistance following the incident totaling $3,502.20. I find that Ms. Cornwall is entitled to be compensated for these expenses as claimed.
(v) OHIP Subrogated Claim
[59] Correspondence issued by the Ministry of Health dated May 31, 2020 detailing treatment provided and paid for during the period July 28, 2017 through April 29, 2020 with respect to injuries suffered by Ms. Cornwall in the slip and fall incident was filed as evidence at trial.
[60] The plaintiffs have established that OHIP has a subrogated claim in these proceedings and judgment shall issue in favour of OHIP’s subrogated claim in the aggregate amount of $4,446.27 for medical services paid on behalf of Ms. Cornwall by the Ministry of Health.
(vi) Blaine Cornwall – FLA Claim
[61] The plaintiff, Blaine Cornwall, did not testify at trial. Evidence of his loss of companionship, care and support was provided by his mother. This evidence constitutes inadmissible hearsay. Consequently, the damages claimed by Blaine Cornwall have not been proven on a balance of probabilities and his claim is hereby dismissed.
Disposition
[62] Judgment against Textile in favour of the plaintiff, Connie Cornwall, shall issue as follows:
Textile shall pay to the plaintiff, Connie Cornwall, general damages in the amount of $65,000.
Textile shall pay to the plaintiff, Connie Cornwall, damages for past income loss in the amount of $154,247.
Textile shall pay to the plaintiff, Connie Cornwall, damages for future income loss in the amount of $250,000.
Textile shall pay to the plaintiff, Connie Cornwall, special damages in the amount of $3,510.29.
Textile shall pay OHIP’s subrogated claim in the amount of $4,446.27.
Costs
[63] The plaintiff, Connie Cornwall was successful in her action against Textile and is, therefore, entitled to her costs of the action. Should Ms. Cornwall wish to pursue a claim for costs, she shall file written cost submissions, not exceeding five pages in length (exclusive of any bill of costs, costs outline, time dockets and case law) within 15 days.
Justice A.K. Mitchell
Released: November 14, 2022
COURT FILE NO.: CV-18-00001440
DATE: 2022/11/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Connie Alice Cornwall, Blaine Ross Cornwall and Brent Robert Cornwall
Plaintiffs
AND:
Rashed Mohamed Mahran Al Bloushi, Tri-Us Property Management Inc., Textile Waste Diversion Inc., Canadian Community Support Foundation and The Corporation of the City of London
Defendants
REASONS FOR JUDGMENT
MITCHELL J.
Released: November 14, 2022
[^1]: Umlauf v. Umlauf, 2001 ONCA 24068, 2001 CarswellOnt 851 (C.A.) at para. 9.
[^2]: R.S.O. 1990, c O.2 (the “OLA”)
[^3]: (1932), 1923 ONCA 478, 54 O.L.R. 174 (Ont. C.A.).
[^4]: Alexander v. Candy (1974), 40 D.L.R. (3d) 654 (Ont. H.C.) (“Candy”) at p. 658.
[^6]: See Wheat v. E Lacon & Co. Ltd. [1966] UKHL 1; Peters v. A.B.C. Boat Charters Ltd. (1992), 1992 BCSC 300, 98 D.L.R. (4th) 316 (B.C. S.C.); Bennett v. Kailua Estates Ltd., (1997) 1997 BCCA 4105, 29 B.C.L.R. (3d) 281 (B.C. C.A.).
[^7]: (1977), 1977 ONCA 1802, 77 D.L.R. (3d) 387 (Ont. C.A.) (“McMann”).
[^8]: Ibid. at p. 380.
[^9]: See Candy.
[^10]: Beals v. Saldanha, 1998 CarswellOnt 4295 (Ont. Ct. (Gen. Div.)) at para. 58.
[^11]: See Exhibit #26.
[^12]: Evidence of 2022 commission income earned to the date of retirement in Summer 2022 was not adduced at trial. Commission income of $12,500 was imputed for the period January 1, 2022 to the date of retirement and deducted from the aggregate damage award for past income loss.
[^13]: $25,065 of commission income earned in 2017 was attributed to the pre-loss period and deducted from past income loss.
[^14]: See Exhibit #18 at page 337.