Court File and Parties
COURT FILE NO.: CV-17-1612 DATE: 2024 05 27 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MIRA KOVACEVIC Plaintiff – and – SLOBODAN GRIVA and MILENA GRIVA Defendants
Counsel: S. Saha for the Plaintiff Self Represented, not in attendance
HEARD: May 13, 2024
Reasons for Judgment
Justice Mills
Overview
1The defendants did not attend for the trial which was marked peremptory to both parties. The trial was held in the absence of the defendants.
2The defendants each uploaded a document to CaseLines which purported to be an affidavit, but neither document was sworn, commissioned, or notarized. The documents were not accepted for filing with the Court and the contents of the documents were not considered. In the circumstances, there was no evidence from the defendants and this trial proceeded on an uncontested basis.
3The plaintiff filed a sworn affidavit with two document briefs as her trial evidence. A pretrial order was made requiring the evidence in chief of all witnesses to be provided by way of affidavit, with the affiant available at trial to be cross-examined. It was anticipated there would be seventeen witnesses called for this trial and a timetable was fixed for the delivery of the affidavits.
4In the end, neither party adhered to the Court ordered timetable, and the plaintiff was the only witness to file an affidavit. Counsel for the plaintiff confirmed she had nothing further to add to her affidavit and she had no corrections she wished to make. The plaintiff did not take the stand. As the defendants failed to attend the trial, there was no cross-examination of the plaintiff on her sworn testimony.
5The plaintiff called no other evidence at trial.
6I am left to make a credibility assessment based solely on the plaintiff’s affidavit and the documents relied upon to support her claim for damages.
Background
7The plaintiff filed a large volume of timesheets and invoices for caregiver and attendant care services she claims to have provided to the defendants from June 2012 to October 2016. The services included such tasks as driving to appointments; grocery shopping, meal preparation and cooking; assistance with bathing, sleeping, and dressing; managing financial and insurance matters, including the provision of translation services to and from the Serbian language; and communicating with legal counsel on the defendants’ personal injury litigation.
8The defendants were long haul truckers. In 2011, they were involved in a motor vehicle accident in the state of Indiana, USA. Mrs. Griva was driving, and Mr. Griva was asleep in the bunk of the truck cab. Mr. Griva was seriously injured in the accident. Both defendants pursued personal injury litigation. Mr. Griva received $1,849,967.10 and Mrs. Griva received $90,334.98 in settlement of their respective lawsuits.
9The invoices submitted by the plaintiff total $642,633.77. She admits to having received $66,500 towards payment for her services. She now seeks payment of the balance, being $576,133.77. The plaintiff also seeks $50,000 in punitive damages claiming the defendants’ conduct was reprehensible in taking the settlement funds, which included compensation for caregiver and attendant care services, and moving back to their native Serbia without paying their debt or settling this litigation. The plaintiff also takes issue with some of the allegations made in the Statement of Defence and relies on those alleged false statements as warranting a claim for punitive damages.
10The plaintiff relied on no caselaw in respect of her claim for damages, general or punitive.
Analysis
11It was submitted the parties had entered an oral contract for the plaintiff to be compensated from the settlement proceeds received by the defendants. There is no documentary evidence of any such agreement between the parties.
12The defendants, in their Statement of Defence, plead the only agreement was for the plaintiff to be compensated from the insurance companies. They admit that certain amounts were claimed from their insurer and when the payments were received, the funds were remitted to the plaintiff. When the insurers refused to pay any more for the plaintiff’s services, the defendants plead the arrangement for the plaintiff to provide caregiver services was terminated. The defendants plead there was no agreement for the plaintiff to receive any of the settlement funds paid to them. They further plead that rehabilitation, occupational, and massage therapy were provided by others, and social workers provided case management and in-home support.
13The plaintiff states in her Reply that she worked in excess of 15 hours per week for the defendants. The weekly timesheets and invoices rendered by the plaintiff are significantly higher, often more than 35 hours per week for each defendant. During this period, the plaintiff was also self-employed on a full-time basis as an insurance broker. She was the insurance broker for the defendants and had arranged the insurance against which the defendants were making claims.
14The timesheets indicate that on the weekdays, the plaintiff would typically provide ten hours of services and on the weekends, she would typically provide services for more than twelve hours per day. The invoices fluctuated, but when examined together, the total time charged by the plaintiff for caregiver services to the defendants was routinely in excess of 300 hours per month. By 2016, the total time charged to the defendants was typically in the order of 350 hours per month. The plaintiff claims to have provided services until October 2016 but there are no invoices or timesheets beyond July 31, 2016 to support this claim.
15The first invoice for services rendered to Mr. Griva during the month of June 1 – 30, 2012, lists ten specific tasks performed plus a catchall “many different tasks when client need”. Every other invoice rendered monthly until February 2016 said, “See description, Invoice No:1”. From February to July 2016, the invoices contained the same description, but they also included charges for overtime.
16The plaintiff claims attendant care services were rendered to Mrs. Griva commencing February 1, 2011. One invoice was rendered on July 15, 2015, to cover the period of February 1, 2011 to November 30, 2012. The services rendered included driving to appointments and social engagements, playing games and puzzles, assisting with computer use and administrative tasks, shopping and meal preparation, assisting with medications and with leisure activities. The invoice states that 114 hours of services were provided each month for the 22 month period at a rate of $25 per hour. The total claimed is $70,851 including HST. There is no other evidence to support these tasks were done or that this time was incurred. There are no weekly timesheets for this period.
17Commencing December 2012, monthly invoices were rendered by the plaintiff for services provided to Mrs. Griva. The invoice dated December 31, 2012, lists a number of tasks performed including driving to appointments, driving to church and driving to visit with friends, gambling and playing games, walking, long conversations with Mrs. Griva, helping her to contact her children over Skype, balancing the situation between Mr. and Mrs. Griva as they argue very often, buying and preparing food, preparing and serving drugs, doing laundry, administrative tasks, and choosing books, music, language, sport and driving “together with tasks for Mr. Griva”. The balance of the invoices rendered for Mrs. Griva simply refer back to the same description as provided in this invoice. There is a clear duplication of billing as many of these caregiver tasks were also charged to Mr. Griva.
18On November 4, 2015, the plaintiff issued invoices to both defendants for the time incurred in preparing timesheets from 2012 to October 31, 2015. She sought compensation for preparing, writing, copying, and signing the time sheets, claiming each timesheet for each defendant took 30 minutes to prepare. On October 31, 2015, the plaintiff issued invoices for overtime dating back to 2012 and for the use of her motor vehicle for the period of June 2014 to July 2015.
19The delivery of these invoices in late 2015 suggests the timesheets and the invoices were not created contemporaneously with when the services were allegedly provided. I infer from this that the timesheets and invoices do not accurately reflect the time or services provided by the plaintiff to the defendants. It is incredulous that the plaintiff, in addition to working full-time in her own insurance brokerage business, provided more than 300 hours of caregiving services to the defendants on a monthly basis for over four years, the only exceptions being the months when the defendants took vacations in Europe. There was no significant variance in the timesheets or the invoices from 2012 to 2015. In 2016, the time appears to have significantly increased until the services ended on July 31, 2016. This is contrary to reason and common sense. It would be expected the time and services provided would decrease as the defendants recovered from their injuries.
20The settlements reached by the defendants suggest that Mr. Griva was catastrophically injured while Mrs. Griva was only modestly injured. The caregiving costs sought by the plaintiff for services allegedly rendered to Mrs. Griva equal $318,951.34 – an amount that is 3.5 times the settlement received by Mrs. Griva for the injuries she sustained in the accident. For Mr. Griva, the caregiving costs sought by the plaintiff represent approximately 18% of the settlement payment he received. On a combined basis, the plaintiff seeks to recover fully one-third of the damages paid to the defendants for her services, none of which included medical or rehabilitation therapy. This is unreasonable and defies common sense.
21On this basis, I find the plaintiff’s evidence is not credible nor is it reliable. I find as a fact that the timesheets and invoices are exaggerated, if not fabricated. I do not accept any of the timesheets or invoices as being a genuine reflection of the services rendered by the plaintiff to the defendants. I find they were not created contemporaneously with the services rendered.
22I do accept the plaintiff’s evidence that the agreement between the parties was that she would receive $2,000 per month for her assistance with everyday caregiving tasks. I do not accept that it was to be $2000 per defendant per month. There are several personal cheques in that amount written monthly in 2013, 2014 and 2015 from Mrs. Griva to the plaintiff which document and substantiate the agreement. I do not accept the plaintiff’s evidence this agreement was modified by further oral agreement that she would be paid in accordance with invoices rendered when settlement funds were received.
23The plaintiff relies on correspondence written by Mr. Griva’s former legal counsel to his new counsel which states the plaintiff was owed $116,762.62. The document was not proven as there is no evidence from either counsel. The plaintiff was neither the author nor the recipient of the document. She is unable to authenticate it simply by including it in her document brief. The defendants have not admitted the truth of its contents. The same is true for the various letters and emails written by legal counsel to Mr. Griva respecting the proposed value of his damages, the terms of his settlement or the expenses for which he sought reimbursement. These documents are all subject to solicitor-client privilege. In the absence of a clear waiver of privilege from Mr. Griva, these documents should not have been included in the evidence of the plaintiff.
24The report of the occupational therapist respecting Mr. Griva’s needs was also not proven at trial.
25None of the answers provided on the written examinations for discovery were read into the record. The documents themselves do not constitute evidence at this trial.
26I accept the defendants agreed to retain the plaintiff to provide attendant care services commencing in April 2013 when the first payments were made. If I accept the relationship ended in July 2016, some 39 months later, the plaintiff has been more than compensated for her services. She admits to having already received $66,500 in payments from the defendants.
27The plaintiff’s claim for general damages is dismissed.
Punitive Damages
28The punitive damage claim is founded on the legal documents which have not been proven, as noted above. The plaintiff also asserts the defendants accepted their legal settlements and fled the country with the intention to avoid paying or settling her claim and that this should found a claim for punitive damages. Counsel submitted it was “mind numbing” how greedy the defendants could be having regard to the substantial settlements received from their personal injury lawsuits, and that it was egregious they would take their settlements and run away to their native Serbia without first settling with the plaintiff.
29As was clearly stated in the Supreme Court of Canada decision in Whiten v. Pilot Insurance Co., 2002 SCC 18 [1], while rare and exceptional, an award for punitive damages in a contract case may be recovered where there is an “actionable wrong” in addition to the breach of contract. They are to be imposed only in circumstances where there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that markedly departs from ordinary standards of decent behaviour.
30As I have already found the invoices and timesheets rendered by the plaintiff were exaggerated or fabricated, the refusal by the defendants to pay those invoices or to settle the plaintiff’s claim is neither an actionable wrong nor is it high-handed, malicious, arbitrary, or reprehensible misconduct.
31The plaintiff also relies on certain allegations made in the Statement of Defence as grounds to claim punitive damages. Allegations in a pleading cannot give rise to a claim for punitive damages. Absolute privilege extends to false or malicious statements made in pleadings. [2] Where allegations of misconduct are made but not proven at trial, the litigant making those allegations may be liable for enhanced costs however, making unfounded allegations does not, in law, create an entitlement to damages or punitive damages. [3]
32The appropriate remedy when faced with pleadings viewed as scandalous, frivolous, or vexatious is to move under Rule 25.11 of the Rules of Civil Procedure to have them struck. As held by Perell J. in Gebien v. Apotex Inc., 2023 ONSC 6792, at para. 267 [4], a scandalous pleading refers to indecent or offensive allegations designed to prejudice the opponent or unnecessary allegations maliciously directed at the moral character of the opponent. This is precisely the claim asserted by the plaintiff as she states the allegations made in the Statement of Defence are “not only untrue but highly offensive”.
33The plaintiff’s claim for punitive damages is dismissed.
Conclusion
34Therefore, plaintiff’s claim is dismissed in its entirety. As the defendants failed to attend the trial, there shall be no order as to costs.
Justice Mills Released: May 27, 2024