Court File and Parties
COURT FILE NO.: 16-67119 DATE: 2024/06/07 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BEHZAD AFKHAM REZAI and FATEMEH SHEIKHBAGHERMOHAJER, Plaintiffs AND: AAROHI KUMAR and DISHANT LANGAYAN, Defendants
BEFORE: A. Kaufman J.
COUNSEL: Tara L. Lemke and Kelly P. Hart, Counsel, for the Plaintiffs Daniel Reisler and Isabelle Amyot, Counsel, for the Defendants
HEARD: June 7, 2024
Endorsement
[1] After the close of evidence, and before instructing the jury in this personal injury case, I held a conference with counsel to determine the questions to be posed to the jury. Liability for the collision is admitted; the sole issue is the quantification of Ms. Sheikhbaghermohajer’s damages.
[2] Plaintiffs’ counsel requested that the jury quantify damages for past attendant care and housekeeping. The defendant strongly opposed this request. Both parties provided written submissions.
[3] On June 7, 2024, I informed the parties that questions specific to the claims for damages for past attendant care and past housekeeping would not be presented to the jury, with reasons to follow. These are my reasons.
[4] First, Ms. Sheikhbaghermohajer’s claims for damages for past attendant care and housekeeping expenses are meant to compensate Mr. Afkham-Rezai for the housekeeping and attendant care services he provided. Mr. Afkham-Rezai settled his Family Law Act (“FLA”) [1] claim. As part of that settlement, he was compensated for the services he provided to his wife.
[5] Second, there was insufficient evidence presented to allow these issues to be considered by a jury. Although two other individuals provided housekeeping services in addition to Mr. Afkham-Rezai, no evidence was provided regarding their compensation, the hours they spent performing these services, or the hours Ms. Sheikhbaghermohajer spent on housekeeping tasks prior to the collision.
[6] Third, the method the plaintiffs proposed to assess damages was inappropriate. They suggested valuing Ms. Sheikhbaghermohajer’s damages based on her pre-trial needs for attendant care and housekeeping. However, as discussed below, the correct measure of damages for services provided by third parties is the value of the services actually rendered, not the value of her needs.
The Action
[7] The two plaintiffs in this action are Behzad Afkham-Rezai and his wife, Fatemeh Sheikhbaghermohajer. On October 6, 2014, while stopped at the intersection of Riverside Drive and Smyth Road, their vehicle was rear-ended by a vehicle driven by the defendant, Aarohi Kumar. The plaintiffs alleged that they suffered physical injuries as a result of this collision. Both plaintiffs also claimed damages pursuant to the FLA for loss of care and companionship, and for the care and assistance they provided each other as a result of the accident.
[8] Mr. Afkham-Rezai settled his personal injury and family law claims before trial, leaving the quantification of Ms. Sheikhbaghermohajer’s damages as the sole issue at trial.
[9] The statement of claim was amended twice. In its final version, Ms. Sheikhbaghermohajer claims “damages for the cost of past, present, and future care, treatment, therapy, medical and assistive devices amounting to $5,548,694” and “damages for the cost of past, present, and future housekeeping amounting to $673,217”.
[10] Ms. Sheikhbaghermohajer also alleged that her impairments prevent her from engaging in homemaking and household responsibilities and that she is unable to perform many of her normal tasks. On days when she is in considerable pain, she claims that she cannot perform household tasks.
[11] Ms. Sheikhbaghermohajer alleges that due to the defendants’ negligence, she has incurred out-of-pocket expenses, which she claims as special damages. She undertook to inform the defendants, prior to trial, of the particulars of any out-of-pocket expenses she is claiming in this action.
[12] Mr. Afkham-Rezai pleaded that he has “provided care and assistance to” Ms. Sheikhbaghermohajer and claimed damages under the FLA. As noted, Mr. Afkham-Rezai settled his action, including his FLA claim.
Evidence at Trial
[13] Three individuals provided attendant care and housekeeping services for Ms. Sheikhbaghermohajer: Mr. Afkham-Rezai, a lady named Nouria, and a friend named Vahid Mansourian.
[14] Mr. Afkham-Rezai provided services to Ms. Sheikhbaghermohajer gratuitously. Mr. Afkham-Rezai testified that he assisted with various personal tasks, including providing medications, cooking, cleaning, laundry, and making purchases for Ms. Sheikhbaghermohajer. Mr. Afkham-Rezai testified that he performed “light” housekeeping.
[15] He testified that he provided Ms. Sheikhbaghermohajer massages, brought her heat pads, and applied pressure to her head for comfort. He also scheduled appointments and drove Ms. Sheikhbaghermohajer to them. Mr. Afkham-Rezai ensured Ms. Sheikhbaghermohajer did not take more medication than required and picked up medications from the pharmacy. He helped her up and down the stairs, although she could sometimes manage on her own, and escorted her to the bathroom at night when she experienced dizziness from medication.
[16] The plaintiffs did not present evidence of out-of-pocket expenses relating to past housekeeping and attendant care.
[17] Mr. Afkham-Rezai testified that in the months following the accident, he and Nouria were Ms. Sheikhbaghermohajer’s primary caregivers. Nouria assisted with housekeeping for about eight months to one year. No evidence was led regarding the plaintiffs’ financial arrangements with Nouria. Specifically, there is no evidence of any payments ever made to Nouria.
[18] In late 2017 or early 2018, Mr. Vahid Mansourian moved in with the plaintiffs. He did not testify. According to the testimonies of Mr. Afkham-Rezai and Ms. Sheikhbaghermohajer, Mr. Mansourian performed heavier housekeeping tasks in exchange for room and board. These tasks included vacuuming, sweeping, cleaning dishes, cooking main meals, and thorough dusting. No evidence was provided regarding the value of Mr. Mansourian’s compensation.
[19] Mr. Afkham-Rezai testified that he did not expect Ms. Sheikhbaghermohajer to handle all heavy housework even before the accident. He admitted that he participated in chores prior to the collision but did not specify which ones. He stated that after the collision, Ms. Sheikhbaghermohajer did not perform any housekeeping except for occasionally washing a cup or dish.
[20] There is no evidence from either of the plaintiffs as to the number of hours Mr. Afkham-Rezai spent carrying out housekeeping tasks that the plaintiffs allege Ms. Sheikhbaghermohajer carried out prior to the collision. Nor is there any evidence of the number of hours Mr. Afkham-Rezai spent providing attendant care for Ms. Sheikhbaghermohajer. Neither individual tracked those hours; neither individual attempted to even provide an estimate of the number of hours involved in either type of activity.
[21] I turn to consider the law applicable to claims of this kind.
Damages for Past Housekeeping and Past Attendant Care
[22] Damages related to the loss of ability to continue to do one’s own housekeeping may be compensated for in one of two ways. First, if the claim is advanced as related to the injured person’s loss of autonomy and the impact of that loss on their well-being, then the loss may be a consideration when assessing the quantum of general damages. Alternatively, if the claim is advanced as one for expenses incurred, to the date of trial, for housekeeping services (i.e., to replace those services that the injured person can no longer perform), then the injured person may be compensated for the expenses in the form of special damages.
[23] Expenses incurred for attendant care services, to the date of trial, fall under the heading of special damages.
Loss of Housekeeping as General Damages
[24] The Court of Appeal for Ontario recognized that claims relating to housekeeping up to the day of trial might arise in one of three scenarios:
- An injured plaintiff may leave some or all housekeeping undone.
- The plaintiff may perform some or all housekeeping, but with increased pain and reduced efficiency.
- The plaintiff may rely on paid or unpaid third parties to perform some or all housekeeping. [2]
[25] Damages arising from the first two scenarios are compensable through an award of general damages. A person’s pre-accident ability to perform housekeeping tasks would have contributed to their sense of identity. The loss of this ability diminishes one’s sense of identity. Additionally, if housekeeping work is left undone, the plaintiff will live with the loss of the amenity of an orderly and functioning home. When housekeeping is done with pain or difficulty, a plaintiff may work more hours to accomplish the same amount of pre-accident housekeeping. These are intangible losses which fall under non-pecuniary damages.
[26] In the matter before this court, there is no evidence that Ms. Sheikhbaghermohajer left work undone or performed housekeeping tasks with pain or difficulty. Housekeeping tasks were performed by others, either gratuitously or for consideration. While Ms. Sheikhbaghermohajer’s loss of housekeeping ability could be compensated through an award for general damages, the Court of Appeal held that it is inappropriate to create a separate heading for one specific component of a global award for non-pecuniary damages. Such damages should be assessed globally. [3] Thus, it would not have been appropriate to request the jury to quantify this loss as a specific heading within Ms. Sheikhbaghermohajer’s claim for general damages.
Housekeeping Expenses as Special Damages
[27] Housekeeping and attendant care services performed by third parties may be compensable through a special damages award if the plaintiff incurs a pre-trial out-of-pocket loss by hiring a replacement homemaker or care provider. When there is evidence that the plaintiff agreed or was otherwise obliged to compensate a third party for services rendered before trial, the plaintiff may claim the amount paid as special damages. [4]
[28] The injured plaintiff may establish entitlement to a special damages award in this heading even if the obligation to compensate the third party is based on a moral obligation, rather than a legally enforceable one. [5]
Claims Under the FLA
[29] Pursuant to s. 61 of the FLA, relatives of a personal injury claimant (spouse, children, grandchildren, parents, grandparents, and siblings) can claim damages equal to the value of services rendered to the injured family member for nursing, housekeeping, or other personal services. Mr. Afkham-Rezai sought damages under s. 61 of the FLA, alleging that he “has provided care and assistance to Fatemeh”.
[30] As noted above, Mr. Afkham-Rezai settled his claim for damages pursuant to s. 61 of the FLA. He accepted that settlement in full compensation for the claims he advanced – including the claims for compensation for services provided, to the date of trial, for housekeeping and attendant care.
In-Trust Claims for Services by Friends or Family Members
[31] The injured plaintiff may, instead, advance an in-trust claim on behalf of friends or family members. The court can award compensation for housekeeping or attendant care “expenses”, directing that the award be held in trust for the friends or family members who provided the care. For instance, in Pelletier v. Ontario, the plaintiff advanced a claim of $840,109 on behalf of the Browne family, who provided care, comfort, and supervision for four years. [6] The court awarded $50,000 in trust for the Brownes.
Measure of Damages and Avoidance of Double Recovery
[32] Whether a claim for past housekeeping or attendant care expenses is advanced by the plaintiff, by a family member pursuant to the FLA, or as an in-trust claim, the measure of damages remains the same: the value of the services rendered. [7]
[33] Although claims for the value of pre-trial housekeeping and attendant care services can be presented in one of three ways, they can only be claimed once. Granting a plaintiff damages for the value of a spouse’s housekeeping and attendant care services, as well as awarding that spouse’s claim under the FLA for the same services, would result in an impermissible double recovery.
The Impact of the Settlement of Mr. Afkham-Rezai’s FLA Claim
[34] Mr. Afkham-Rezai pursued a claim under s. 61 of the FLA for the value of the care and assistance he provided to Ms. Sheikhbaghermohajer. Section 61(2)(d) allows for the recovery of damages, including those for “nursing, housekeeping or other services” provided. As this claim was settled prior to trial, in my view it would be improper to now compensate Ms. Sheikhbaghermohajer for the value of Mr. Afkham-Rezai’s housekeeping and attendant care services. To do so would amount to double recovery.
[35] The amount paid to Mr. Afkham-Rezai in settlement of his FLA claim was not disclosed to the court. Regardless, and as already noted, Mr. Afkham-Rezai was aware that the amount of the settlement is intended as full compensation for his claims. The claim for the value of his services cannot now be advanced by his spouse in her capacity as the injured plaintiff.
Evidentiary Requirements Before Putting a Question to a Jury
[36] A minimum evidentiary foundation must be established before submitting an issue to a jury. The evidence must be sufficient to support a verdict. The Court of Appeal describes the evidentiary threshold as requiring “reasonable evidence”. It is the court’s duty to determine if there is reasonable evidence to present to a jury; no question can be rightly submitted without an affirmative determination in that regard. [8]
[37] In matters of economic loss, a trial judge may not (a) propose a method for quantifying damages that is not supported by the evidence at trial, or (b) use an approach that the parties did not advance and had no opportunity to test or challenge. [9] There must be admissible evidence upon which a properly instructed jury can make the requisite findings of fact to support their calculation of the compensation awarded. [10] Juries should not be invited to “speculate and pull a dollar figure out of thin air.” [11]
Evidentiary Requirements Have Not Been Met
[38] While Mr. Afkham-Rezai described the nature of the services he personally provided, he did not specify the number of hours spent over the past nine and one-half years providing either attendant care or housekeeping services. He also did not testify about the delineation in housekeeping duties between himself and Ms. Sheikhbaghermohajer before the collision, other than stating that he participated in chores.
[39] Furthermore, Mr. Afkham-Rezai testified that in late 2017 or early 2018, he shared housekeeping duties with Mr. Mansourian. Mr. Afkham-Rezai handled light housekeeping and Mr. Mansourian performed heavier tasks. No evidence was presented delineating the time each man spent on housekeeping tasks.
[40] The court assumes that Nouria received compensation although there was no evidence about these financial arrangements. Mr. Mansourian was compensated in the form of room and board. The plaintiffs did not present any evidence regarding the value of Mr. Mansourian’s room and board. In the absence of this evidence, it would be inappropriate to ask the jury to speculate on the value of these past services.
[41] In Alison Braks v. Dundeal Canada (GP) Inc., the plaintiff’s claim for damages for past loss of housekeeping and handyman capacity was dismissed because (a) that specific claim for damages was not pleaded, and (b) the plaintiff did not present any evidence that she had incurred out-of-pocket expenses for housework done by others or, alternatively, tender any evidence showing the hours spent by others completing the housework gratuitously. [12]
[42] The Court of Appeal for Ontario reached the same conclusion in McIntyre, where “neither the family members nor [the plaintiff] provided any particulars of the time the family members spent assisting [the plaintiff] as a result of her injuries”. [13]
[43] Without evidence regarding the split in housekeeping activities between Mr. Afkham-Rezai and Ms. Sheikhbaghermohajer before the collision, the split in the time spent on housekeeping activities between Mr. Afkham-Rezai and Mr. Mansourian after the collision, or the number of hours spent on these activities, there is insufficient evidence to support putting to the jury a question that requires them to assess damages for past housekeeping expenses.
[44] Ms. Sheikhbaghermohajer proposes that the jury assign a value to past housekeeping and attendant care services based on her assessed need for such services and the market rate for their provision. She relies on the testimony of Christine Andrus, an occupational therapist, and of Gillian Hickman, an occupational therapist and certified life care planner. Ms. Hickman prepared a Future Care Needs and Cost analysis, while Ms. Andrus assessed Ms. Sheikhbaghermohajer’s needs and estimated the level of housekeeping and attendant care Ms. Sheikhbaghermohajer required after the collision.
[45] The method by which Ms. Sheikhbaghermohajer proposes that the jury assess her damages for past housekeeping and attendant expenses is not correct in law. First, Ms. Sheikhbaghermohajer claimed damages for the cost of her past care and past housekeeping. The proposed methodology differs from what was pleaded, as it seeks compensation for the value of her needs, regardless of whether these needs correspond to the services actually received from her husband, Nouria, and Mr. Mansourian. Any unmet housekeeping needs would be compensable through an award for general damages, while services provided by third parties, whether paid or unpaid, are compensable through an award for special damages based on the value of the services received, not the value of her needs. [14]
[46] Second, even if evidence had been presented regarding the time Mr. Afkham-Rezai spent on housekeeping and attendant care services, multiplying these hours by the hourly rate of a professional cleaner or personal support worker is an imperfect measure of the value of the services he provided. Professional services are typically procured through an agency, and the hourly rates include overhead and profit. Additionally, professional housekeeping rates may include cleaning products, and professionals would likely complete the tasks more efficiently and effectively.
Disposition
[47] Ms. Sheikhbaghermohajer may not ask the jury to separately value the past housekeeping and attendant care services she received, whether from Mr. Afkham-Rezai gratuitously, or from Nouria and Mr. Mansourian. These claims are barred to the extent they were included in Mr. Afkham-Rezai’s settled FLA claims.
[48] Furthermore, such claims must be based on the value of the services Ms. Sheikhbaghermohajer received. The plaintiffs did not present any evidence regarding the time spent providing these services, the parties’ pre-accident split in housekeeping duties, or the amount of consideration given for housekeeping services from third parties. It is not permissible for them to ask the jury to quantify these claims based on the value of her need.
A. Kaufman J. Date: June 19, 2024
Footnotes
[1] R.S.O. 1990, c. F.3.
[2] McIntyre v. Docherty, 2009 ONCA 448, 97 O.R. (3d) 189, at para. 22.
[3] Ibid, at para. 55.
[4] Ibid, at para. 75.
[5] Dziver et al. v. Smith (1983), 41 O.R. (2d) 385 (C.A.).
[6] Pelletier v. Ontario, 2013 ONSC 6898, 57 M.V.R. (6th) 202 (S.C.).
[7] McIntyre, at para. 75; FLA, s. 61(2)(d).
[9] TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, 314 O.A.C. 133, at para. 65.
[10] Ayub v. Sun, 2016 ONSC 6598 (Div. Ct.), at para. 62.
[11] Johnston v. Walker, 2017 ONSC 3370, 10 C.P.C. (8th) 154, at para. 10.
[12] Alison Braks v. Dundeal Canada (GP) Inc., 2022 ONSC 3978, at para. 223.
[13] McIntyre, at para. 76.
[14] Ibid, at para. 75.