Sandhu v. Wellington Place Apartments et al.,

• Jurisdiction: Ontario
• Judge: Rosenberg, Simmons and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2008), 234 O.A.C. 200 (CA),2008 ONCA 215
• Date: 31 March 2008

Sandhu v. Wellington Place (2008), 234 O.A.C. 200 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. AP.001

Harvinder Sandhu , minor, by his Litigation Guardian, Sukhedev Sandhu, Sukhdev Sandhu , personally, Jagdish Sandhu , and Parminder Sandhu, minor, by his Litigation Guardian, Sukhdev Sandhu (plaintiffs/defendants by counterclaim/respondents/ appellants by cross-appeal ) v. Wellington Place Apartments, E. Manson Investments Limited, Emery Investments Limited, Grason Developments Limited, Richard Goldberg and The 1995 Manson-Goldberg Family Trust, under the Registered Partnership Style, E.M. Management and Dave Ferguson (defendants/plaintiffs by counterclaim/appellants/respondents by cross-appeal)

(C45706; 2008 ONCA 215)

Indexed As: Sandhu v. Wellington Place Apartments et al.

Ontario Court of Appeal

Rosenberg, Simmons and MacFarland, JJ.A.

March 31, 2008.

Summary:

The two year old plaintiff (Harvinder Sandhu) suffered, inter alia, a severe brain injury after falling from a fifth floor window in the aunt's and uncle's apartment. The open, sliding sash window had a screen with a large hole in it and no child lock. The aunt and uncle had requested repairs on multiple occasions, but the defendant apartment building owners failed to conduct repairs. A jury found the defendants negligent and 90% at fault and Harvinder's parents negligent and 10% at fault. The jury awarded $311,000 general damages for non-pecuniary loss (maximum award), $1,166,283 for future loss of income and $10,942,908.00 for future care and an additional sum of $4,182,039.02 for guardianship costs. Harvinder's parents and his brother were each awarded $100,000 for their derivative claims under the Family Law Act. Subsequently, in a judgment reported [2006] O.T.C. 517, the plaintiff was awarded a $350,000 costs premium. The defendants appealed the jury verdict (liability and damages) and the awarding of the costs premium. The plaintiff cross-appealed the trial judge's decision that the entire award for future care costs be invested in an annuity. The plaintiff's solicitors cross-appealed, contingent on a successful appeal by the defendants on the costs premium issue, requesting that any amount that the defendants were relieved from paying be charged to the plaintiff.

The Ontario Court of Appeal dismissed the appeal from the jury's finding of liability and the assessment of damages. The court dismissed the cross-appeal on the issue of the investment strategy. The court allowed the appeal respecting the costs premium, reducing it to $50,000. The plaintiff's solicitor's contingent cross-appeal was allowed, with the court ordering that the solicitor-client fees approved at trial be increased by $300,000.

Barristers and Solicitors - Topic 3305

Compensation - Measure of compensation - Bonus - [See Practice - Topic 7429 ].

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - A two year old child suffered catastrophic injuries, including severe brain damage, in a fall from a fifth floor window - The jury awarded $311,000 general damages for non-pecuniary loss, which was, when adjusted for inflation, the maximum amount available - The defendants appealed, submitting that the jury erred in awarding the maximum amount, which was reserved for the most serious of cases - The Ontario Court of Appeal dismissed the appeal, stating that "the upper limit for non-pecuniary damages in catastrophic injury cases is not to be used as a scale against which non-pecuniary claims for all other injuries are to be measured ... In other words, it is inappropriate to evaluate [the plaintiff's] injuries solely on the basis of some notional comparison with an imagined worst case scenario. While awards for non-pecuniary damages in similar cases should achieve a degree of consistency and uniformity, this kind of comparative analysis offers only limited assistance. The assessment of non-pecuniary damages ultimately depends on the mix of factors peculiar to each particular plaintiff." - The severity of the plaintiff's brain injury and its catastrophic effect on his life made it appropriate for the jury to award the maximum damages available for non-pecuniary loss - See paragraphs 23 to 29.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The two year old plaintiff suffered a catastrophic brain injury in 1997 - At trial in 2006, the trial judge awarded $10,942,908 damages for future care and ordered that the entire award be invested in an annuity - The plaintiff challenged the investment strategy, submitting that a portion of the award should have been invested in the capital market - The Ontario Court of Appeal held that the trial judge did not err in exercising her discretion as to the investment strategy - The requirements of s. 116(1)(b) of the Court of Justice Act were met - The trial judge's decision to maintain a higher proportion of the award in a secure investment was appropriate - See paragraphs 127 to 148.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - The two year old plaintiff suffered a catastrophic brain injury - A jury awarded lost future income based on a retirement age of 65 - The defendants appealed, submitting that there was uncontested expert evidence that the average statistical age of retirement in Ontario was age 61.2 - An expert chose 65 instead of 62 because 65 was still the accepted level of retirement, especially where mandatory retirement ages were being removed and people were working longer for economic reasons - The Ontario Court of Appeal held that it was open to the jury to select 65 as the appropriate age of retirement - See paragraphs 40 to 43.

Damage Awards - Topic 590

Torts - Injury to third parties - Loss of care, guidance and companionship - The two year old plaintiff suffered a catastrophic brain injury - A jury awarded the plaintiff's parents and brother $100,000 each for their derivative claims under the Family Law Act - The defendants appealed the awards as excessive - The Ontario Court of Appeal dismissed the appeal - The awards were at the high end of the range, but were well supported by the evidence - The awards were not so high or inordinate as to warrant appellate interference - See paragraphs 30 to 39.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - [See Damage Awards - Topic 102 ].

Damages - Topic 1558

General damages - General damages for personal injury - Calculation and method of assessment - Evidence and actuarial evidence - The maximum future care costs sought by the plaintiff, based on its expert actuaries' scenarios, was $9,605,000 - The jury awarded $10,942,00, which was $1,336,000 more than the maximum amount requested by the plaintiff - The defendants appealed, submitting that the jury could not award an amount higher than was sought by the plaintiff and that there was no expert evidence to support the higher amount - The Ontario Court of Appeal dismissed the appeal - The jury was not obliged to accept the scenarios presented by the expert witnesses - They were free to make their own calculation, provided that it was supported by the evidence - The court stated that "there was evidence before the jury which, if accepted, would result in a higher figure for future care cost than the one in the scenario advocated by [defendants'] counsel at trial. Clearly there is no obligation on the jury to accept only the suggestions of counsel." - Accordingly, the jury did not err in awarding damages in excess of that claimed by the plaintiff on the basis of scenarios advanced by his expert witnesses - See paragraphs 10 to 22.

Evidence - Topic 510

Presentation of evidence - Rebuttal evidence - General principles - The Ontario Court of Appeal held that a trial judge did not err in exercising her discretion to permit the plaintiff to call reply evidence "where the defence has raised some new matter or defence that the plaintiff had no opportunity to deal with and which the plaintiff could not reasonably have anticipated" - See paragraphs 100 to 103.

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - The two year old plaintiff suffered a catastrophic brain injury after falling from the fifth floor window of an apartment - The defendant apartment owners were found negligent because of their failure, in the face of repeated requests, to repair a torn screen and place child locks on the window - After the fall, remedial measures were taken at minimal cost - The defendants submitted that the trial judge erred in admitting evidence of the remedial measures, as this evidence was not relevant and was highly prejudicial - The Ontario Court of Appeal dismissed the appeal - The evidence of remedial measures was relevant to the issue of reasonable care - The court rejected the policy argument that admitting such evidence would discourage defendants from taking necessary remedial measures to avoid the appearance of admitting liability - The trial judge, in weighing the probative value of the evidence against its prejudicial effect, did not err in admitting the evidence - The trial judge properly instructed the jury that the evidence could not by itself constitute an admission of liability by the defendants, but that the expense and ease of the remedial work was relevant to whether the defendants took reasonable care - See paragraphs 51 to 64.

Evidence - Topic 1157

Relevant facts - Relevance and materiality - Facts relevant to the issue - Subsequent conduct - [See Evidence - Topic 1026 ].

Evidence - Topic 4007

Witnesses - General - Pretrial interviews - General - The two year old plaintiff suffered a catastrophic brain injury after falling from the fifth floor window of an apartment in 1997 - The defendants sought to interview the plaintiff's teachers before trial - All but one declined - That teacher was interviewed and cross-examined at trial - The defendants submitted that the trial judge erred in refusing to order that the teachers submit to an interview - The Ontario Court of Appeal rejected the submission, stating that "the trial judge's refusal to compel the teachers to speak to defence counsel cannot be equated to forbidding defence counsel from approaching the teachers. The [defendants] did not require the permission of the court to speak to the teachers, and indeed they attempted to do so, but the teachers were under no obligation to cooperate. We also do not agree that the [defendants] had a right to interview the teachers. While there is no property in a witness, equally no potential witness can be forced to speak to counsel outside the courtroom unless the court makes such an order in accordance with statutory or common law rules." - See paragraphs 72 to 78.

Evidence - Topic 5621

Witnesses - Competency and compellability - Voir dire - General - In June 1997, the two year old plaintiff suffered a catastrophic brain injury in a fall from a fifth floor apartment window - At trial in 2006, the trial judge held a competency hearing respecting the infant in the jury's absence, although it was the general practice to do so in the jury's presence - The defendants appealed, submitting that excluding the jury from the voir dire deprived them of the opportunity to evaluate and assess the plaintiff's mental and cognitive abilities - The Ontario Court of Appeal dismissed the appeal - Since the plaintiff was never called as a witness, the procedure used, which the defendants had not objected to, did not prejudice the defendants or the efficient management of the trial - See paragraphs 65 to 71.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The two year old plaintiff suffered a catastrophic brain injury after falling from the fifth floor window of an apartment in 1997 - The trial judge qualified a defence witness as an expert in the area of the psychology of children and adolescents, particularly those with neurodevelopmental disorders, but refused to qualify the witness as an expert on adult outcomes for children with acquired brain injury - The Ontario Court of Appeal held that the trial judge did not err - The court stated that the "threshold for qualification of an expert is whether the witness has 'acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify' ... A witness may be qualified to give evidence in respect of one area but not qualified in a related area because he or she does not possess this special knowledge and experience." - It was open to the trial judge to determine, as demonstrated by the witness in her voir dire testimony, that the witness lacked the special or peculiar knowledge through study or experience to give evidence respecting the adult outcomes for children with acquired brain injury - See paragraphs 94 to 99.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - Defendants sought to call an American architect to testify as to the design, manufacture and testing of window screens and windows - The witness was familiar with United States and international building standards, but was unfamiliar with Canadian building codes generally and no knowledge of standards under the Ontario Building Code in particular - The trial judge ruled that the witness could not testify, as he lacked the qualifications to render an expert opinion on the standard of care in Ontario - The Ontario Court of Appeal agreed that the trial judge erred in rejecting his testimony on the narrow issue of standards in the industry - The court stated that "ordinarily, lack of experience in Canadian standards should not disqualify an expert from giving evidence about standards in the industry. A lack of Canadian experience merely goes to the weight to be attached to the evidence." - However, the court found that the evidence did not affect the verdict at trial, given the limited value of the proposed evidence - See paragraphs 82 to 88.

Evidence - Topic 7016

Opinion evidence - Expert evidence - General - Admissibility v. weight - [See Evidence - Topic 7002 ].

Practice - Topic 7429

Costs - Solicitor and client costs - Measure of solicitor and client costs - Counsel fees (incl. premium) - In a successful negligence action, the trial judge awarded the plaintiff's counsel a solicitor-client premium of $1,000,000, of which $650,000 was payable by the plaintiff and $350,000 payable by the defendants - The Ontario Court of Appeal allowed the defendants' appeal, reducing the premium by $300,000 to $50,000 - The court allowed counsel's contingent cross-appeal, ordering that the $300,000 reduction be charged to the plaintiff - The trial judge had no jurisdiction to award a premium over and above partial or substantial indemnity costs if it was based on risk only - Although the dominant consideration in awarding the premium was based on the risk, it was also partially based on the result obtained, the complexity of the matter and the importance of the issues - Accordingly, a reduced premium was warranted - See paragraphs 112 to 125.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - Defendants challenged a jury's damage awards as inflated - The Ontario Court of Appeal restated that "courts accord great deference to a jury's findings in civil negligence proceedings. The verdict of a civil jury will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it" - The court added that "by the same token a jury verdict will be unjust where there is no evidence to support it. Where an appellate court finds such an absence of evidence to support a particular verdict the court has the right as well as the duty to set that verdict aside." - See paragraphs 10 to 11.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - Defendants submitted that "whenever a plaintiff is awarded the maximum amounts sought on each claimed head of damage it should be concluded the trial was unfair and any errors on the part of the trial judge must necessarily have resulted in a significant predisposition in favour of the plaintiff, thereby rendering the verdict unreasonable. In other words, it would only be in a 'perfect' as opposed to 'fair' trial where a verdict based on maximum awards could stand." - The Ontario Court of Appeal held that "this proposition is plainly wrong" - See paragraphs 45 to 50.

Cases Noticed:

McIntyre v. Grigg et al. (2006), 217 O.A.C. 217; 83 O.R.(3d) 161 (C.A.), refd to. [para. 10].

Howes et al. v. Crosby et al. (1984), 2 O.A.C. 375; 45 O.R.(2d) 449 (C.A.), refd to. [para. 25].

Koukounakis et al. v. Stainrod (1995), 81 O.A.C. 36; 23 O.R.(3d) 299 (C.A.), refd to. [para. 25].

Baynton v. Rayner, [1995] O.J. No. 1617 (Gen. Div.), refd to. [para. 28].

Landolfi v. Fargione (2006), 209 O.A.C. 89; 79 O.R.(3d) 767 (C.A.), refd to. [para. 46].

1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co. (2006), 209 O.A.C. 127; 267 D.L.R.(4th) 690 (C.A.), dist. [para. 49].

Pereira v. Hamilton Township Farmers' Mutual Insurance Co. - see 1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co.

Barker v. Zurich Insurance Co. (2001), 140 O.A.C. 358 (C.A.), dist. [para. 49].

Anderson v. Maple Ridge (District) et al., [1993] 1 W.W.R. 172; 17 B.C.A.C. 172; 29 W.A.C. 172 (C.A.), refd to. [para. 54].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 55].

James v. River East School Division No. 9 (1975), 64 D.L.R.(3d) 338 (Man. C.A.), refd to. [para. 57].

Cominco Ltd. v. Westinghouse Canada Ltd. (1979), 11 B.C.L.R. 142 (C.A.), refd to. [para. 58].

Algoma Central Railway v. Fraser (Herb) and Associates Ltd. et al. (1988), 31 O.A.C. 287; 66 O.R.(2d) 330 (Div. Ct.), refd to. [para. 59].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 87].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 96].

Walker v. Ritchie et al. (2005), 197 O.A.C. 81 (C.A.), revd. [2006] 2 S.C.R. 428; 353 N.R. 265; 217 O.A.C. 374, refd to. [para. 113].

Manufacturers Life Insurance Co. v. Ward, 2007 ONCA 881, refd to. [para. 114].

Chesher v. Monaghan (2000), 179 O.A.C. 90; 48 O.R.(3d) 451, refd to. [para. 143].

C.R. et al. v. Morana et al. (1997), 38 O.T.C. 171; 34 O.R.(3d) 647 (Gen. Div.), affd. (2000), 135 O.A.C. 123; 187 D.L.R.(4th) 577 (C.A.), refd to. [para. 144].

Counsel:

John A. Campion and Annie M.K. Finn, for the appellants/respondents by cross-appeal;

Earl A. Cherniak, Q.C., Kirk F. Stevens and Nancy L. Ralph, for the respondents/appellants by cross-appeal;

Linda M. Waxman, for the Children's Lawyer.

This appeal and cross-appeals were heard on September 4, 2007, before Rosenberg, Simmons and MacFarland, JJ.A., of the Ontario Court of Appeal.

On March 31, 2008, the following judgment was released by the Court.