Court File and Parties

COURT FILE NO.: CV-20-648703 DATE: 20230310 ONTARIO SUPERIOR COURT OF JUSTICE

Mohanthas Markadulingam, Plaintiff

• AND – Vasanthy Sivakumar, Defendant

Counsel: Christopher D. Finlay, for the Plaintiff

HEARD: March 9, 2023 L. Merritt J.

Endorsement

[1] In this one-day undefended trial the Plaintiff seek damages for injuries sustained on November 27, 2018 when he fell down the basement stairs at the house at 52 Maryvale Ave., Markham, Ontario. The house is owned by the Defendant Vasanthy Sivakurar who was the Plaintiff’s landlord.

[2] The Affidavit of Service establishes that the Defendant was properly served with the Statement of Claim on November 13, 2020 and has never responded. The Defendant was Noted in Default was requestioned on February 23, 2021.

[3] As set out by the Court of Appeal in Umlauf v. Umlauf, 2001 ONCA 24068, 53 O.R. (3d) 355, under Rule 19.02(1) of the Rules of Civil Procedure, a defendant who has been noted in default is deemed to admit the allegations of fact made in the Statement of Claim. This rule provides a mechanism for proceeding in circumstances where a defendant refuses to participate in the court process, but does not speak directly about the issue of damages. Pursuant to rule 19.05, where the plaintiff's claim is for unliquidated damages, on a motion, he or she must present evidence with respect to the quantum of damages. There is nothing in either the Rules of Civil Procedure or the established jurisprudence to authorize a judge on an assessment of damages to enter into an inquiry into the facts or the underpinning of the torts that the defendant noted in default is deemed to have admitted.

[4] Turning now to the issues of causation and damages, on basis of Plaintiff’s own testimony as well as photos that are in the record, I conclude the state of the landing with the loose mat and wet area caused the plaintiff to fall as he went to go downstairs to his basement apartment. At the time, the Plaintiff was 36 years of age and lived in the basement apartment of the subject property with his wife and two children.

[5] The Plaintiff tendered as evidence the following records all of which I find are admissible. The records of the Markham Stouffville Hospital, the Fenton Medical Center, Pro-Life Wellness Centre, the Plaintiff’s income tax returns and the OHIP payment summary are business records and admissible under s 35 of the Evidence Act. The report of Dr. Kirubaharan is a medical report and is admissible under s. 52 of the Evidence Act.

[6] The Plaintiff also tendered affidavits from his employer Durapaint and an expert mechanical engineer Jason Young (Mr. Young) of Advantage Forensics Inc and I hereby grant leave to allow the evidence of these two individuals to be given by affidavit pursuant to Rule 53.02 (1) of the Rules of Civil Procedure.

[7] As for the property search and the Fenton Discount Pharmacy receipts, there were no affidavits or witness attesting to the fact that these are business records under s. 35 of the Evidence Act in the sense that they were made in the ordinary course of business, and it was in the ordinary course of business to keep such records. If this case were defended, the plaintiff could have served a Request to Admit under Rule 51.02 (1) of the Rules of Civil Procedure that these records are business records or otherwise obtain the consent of the defendant to agree that they are admissible under the Evidence Act. The Plaintiff’s counsel submits, and I accept, that the plaintiff should be in no worse position than he would otherwise be in with respect to admitting records pursuant to the Evidence Act than if this were a defended trial. In the alternative, if I am wrong on this point, I find that the records are admissible under the common law as made contemporaneously by someone having personal knowledge of the matters then being recorded and under a duty to make the entry or record and should be received in evidence as prima facie proof of the facts stated therein (Ares v. Venner, [1970] S.C.R. 608) or as a principled exception to the hearsay rule as being inherently trustworthy and presenting minimal danger. Their exclusion would impede accurate fact finding. (see R. v. Lemay, 2004 BCCA 604, [2004] B.C.J. No. 2494).

[8] The Plaintiff testified that on November 27, 2018, he went outside to start his car and when he came back into the house through the side door, he slipped on the mat on the wet floor in the foyer area and fell down the basement stairs.

[9] I accept the expert evidence of Mr. Young that the coefficient of friction between the tile floor and the floor mat was likely very low at the time of the incident due to the snow and or water on the tile floor. As such the mat and the tile floor posed a significant hazard to the Plaintiff at the time of the fall. It was the Defendant’s responsibility to maintain the area in a clean, dry, and reasonably safe condition and she did not do so.

[10] The Plaintiff fell down all of the stairs, landing at the bottom of the staircase. He was injured and sustained multiple fracture to his face and left clavicle. The Plaintiff attended at the Markham Stouffville Hospital where he was examined and had x rays taken.

[11] The x rays revealed multiple fractures to his face and left clavicle. The clavicle required surgery; an open reduction and internal fixation which was done the Markham Stouffville Hospital. A plate and screws were inserted and remain to the present time. He attended at the hospital on four (4) occasions.

[12] The Plaintiff emigrated to Canada in 2010 and is a permanent resident. His first employment after arriving in Canada was with his current employer Durapaint Industries Limited (“Durapaint”). On November 27th, 2018, the day of the fall, the Plaintiff was employed at Durapaint as a warehouse helper.

[13] He was unable to work for approximately ten (10) months until September 16th, 2019, and although he is back to work, he remains on modified work with lighter duties.

[14] Dr. Kirubaharan is the Plaintiff’s family doctor. He reports that the Plaintiff has ongoing physiotherapy for six (6) months (the physiotherapy records confirm this), and as of April 2022, the Plaintiff continued to complain of chronic pain on the left arm on and off with heaving lifting.

[15] The Plaintiff lives with his wife and they now have three children. He testified that his ongoing pain and limitations with lifting negatively impact his interactions with his children as well as some other activities that involve lifting.

[16] The Plaintiff was very candid in his evidence and testified that there has been improvement in his pain level. However, he continues to experience pain in his face and shoulder and continues to take pain medication. He testified that his physical limitations and pain cause him to be emotionally upset and “depressed”. There was no evidence before me that he sought treatment for his mental health.

[17] As a result of the fall and injuries he sustained, the Plaintiff was unable to work and lost income from November 27th, 2018 to September 16th, 2019, in the amount of $49,160.58.

[18] The Plaintiff claims special damages in the amount of $38.07 for prescriptions and $2,123.24 for physiotherapy.

[19] OHIP has subrogated claim for $5,953.39.

[20] I accept these special damages and income loss. They are founded on evidence in the record and are reasonable.

[21] In terms of general damages for pain and suffering and loss of enjoyment of life, the Plaintiff seeks $80,000. Plaintiff’s counsel has provided three comparable cases where others have sustained similar injuries. In Anderson v. Kozniuk [2014] B.C.J. 1360 the plaintiff was awarded $65,000 for general damages. In Staff v. Moore 2020 B.C.J. No. 322 the plaintiff was awarded $100,000 in general damages. Taylor v. Wispinski 1993 B.C.J. No 1520 the plaintiff was awarded $50,000. I note that this last case is 30 years old and accounting for inflation would be closer to the damages awarded in Staff. I conclude that general damages in the amount of $80,000, as proposed by Plaintiff’s counsel, are appropriate.

[22] Accordingly, the total amount of damages owed by the Defendant to the Plaintiff is $139,237.21 plus pre-judgement interest calculated pursuant to the Courts of Justice Act from the date of the claim being October 2, 2020, to today.

[23] The Defendant shall also pay the Plaintiff’s costs fixed in the amount of $29,839.87 inclusive of HST and disbursements. The amount for costs requested by Plaintiff’s counsel is reasonable and is supported by a bill of costs.

L. Merritt J. Released: March 10, 2023