The mid-trial ruling of Justice Tranquilli in Solanki v. Reilly, 2021 ONSC 1326,1 provides an analysis of the importance for counsel to ensure there is a "meeting of the minds" with regards to which claims are being pursued at trial.
The plaintiff sought to lead the evidence of an occupational therapist as a participant expert witness in support of past care claims for housekeeping and attendant care arising from alleged personal injuries in a motor vehicle accident.
The defendant objected to the therapist's opinion evidence, and argued that the plaintiff had already eliminated past care claims from the action during her examination for discovery.
The defendant's objection to the plaintiff's evidence raised the question of whether the plaintiff had a duty to correct an answer at her examinations for discovery, and whether it would be just to admit the impugned evidence.
In the Statement of Claim, the plaintiff made a claim for non-pecuniary general damages, pecuniary and special damages, which included a claim for a loss of housekeeping and home maintenance capacity, and pled that she would require assistance to complete such tasks in the future.
At the outset of the plaintiff's examination for discovery, defence counsel stated: "And counsel, will you confirm for the record that there is no economic component being advanced for this plaintiff?" Counsel for the plaintiff responded: "That's correct, there is no, none being advanced."
The defendant argued that evidence of a housekeeping loss does not necessarily mean there is a pecuniary loss. As such, the plaintiff's discovery evidence as to her post-accident housekeeping limitations and her need for personal care assistance did not put the defendant on notice of a pecuniary loss claim in the face of her acknowledgment at discovery that no economic claims were being advanced. The defendant suggested that the plaintiff never corrected her discovery evidence as required pursuant to the Rules of Civil Procedure, and thus could not argue such claims at trial.
The plaintiff submitted that she did not eliminate her past care claim with her answer at discovery. The ordinary meaning of "economic loss" means financial or pecuniary loss and actual financial loss, and the loss of time in the provision of various services such as attendant care does not amount to "economic loss"2.
The plaintiff further argued that a loss of housekeeping capacity is distinct from a non-pecuniary damages claim, and is not dependent on whether replacement housekeeping costs are actually incurred. Housekeeping losses can arise from three scenarios:
- Where the plaintiff leaves work undone (non-pecuniary);
- Where the plaintiff may continue to undertake housekeeping but with pain and difficulty (non-pecuniary); and
- Where the plaintiff incurs a pre-trial out-of-pocket loss by hiring replacement housekeeping services3.
While the defendant may have had the impression that "no economic component" meant that there was no housekeeping or attendant care claims, the judge highlighted that the defendant had been in possession of the occupational therapist's report (which set out an assessment of the attendant care and housekeeping needs) for some time and knew the therapist would be called as a witness at trial.
Further, in consideration of the meaning of an "economic loss" and the different basis on which these damages can be claimed and assessed, the defendant should have clarified this issue with the plaintiff before trial.
The judge concluded that the question of "economic loss" at discovery lacked the necessary precision in clarifying or narrowing the nature and scope of the damages claimed, such that the plaintiff was under no duty to correct the discovery evidence.
Nevertheless, the judge went on to examine whether it was just to give the plaintiff leave to lead the evidence pursuant to rule 53.08, which required consideration of whether the defendant had notice of the nature of the plaintiff's past care claims. In doing so, the judge allowed disclosure of redacted pre-trial memoranda from two pre-trial conferences to address the issue of notice.
The redacted excerpts of the plaintiff's pre-trial memoranda contained submissions in respect of housekeeping and home maintenance as well as attendant care, along with a description of the evidence in support of these claims.
While the defendant's memoranda referred to the discovery evidence that "no economic component" was being advanced by the plaintiff, the information contained in the plaintiff's pre-trial memoranda would have put the defendant on notice of the claims such that, arguably, there was no meeting of the minds on this issue and that there was a need to revisit the understanding of there being no "economic component" to the plaintiff's claim.
Finally, in granting leave to lead evidence in support of the past care claims for housekeeping and attendant care, the judge concluded that there was no prejudice to the defendant. The defendant's theory of the case was that the plaintiff's impairments and damages were the result of her pre-existing condition, and the occupational therapist was cross-examined in a manner that was consistent with the defendant's theory.
Moreover, if the plaintiff was given leave to lead evidence on these claims, some evidence on this issue could be read in by the defendant and accident benefits documents could be filed on consent.
This decision stresses the importance for counsel to ensure with specificity which damages are being pursued before the commencement of trial and, ideally, at the examinations for discovery.
Where it becomes evident that the plaintiff is pursuing claims in which the defendant denies would be admissible at trial, the defendant should consider the need to clarify the issue as early as possible to avoid a finding that there was sufficient notice of those claims at trial.
1.This was a motor vehicle accident claim in which the jury notice was previously struck due to the circumstances surrounding COVID-19. See the following post for more information https://www.rogerspartners.com/two-recent-decisions-on-striking-jury-notices-during-covid-19/
2.Simser v. Aviva Canada Inc., 2015 ONSC 2263 (Div. Ct.) at paras. 39-40
3.McIntyre v. Docherty, 2009 ONCA 448 at paras. 62-75
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