Walker v. Ritchie, (2005) 197 O.A.C. 81 (CA)

• Judge: Catzman, Gillese and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 28, 2005
• Jurisdiction: Ontario
• Citations: (2005), 197 O.A.C. 81 (CA)

Walker v. Ritchie (2005), 197 O.A.C. 81 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. AP.089

Stephanie Suzanne Walker, Gary Walker, Rosemary Walker, Laura Walker, Alyssa Walker and Christine Walker, an infant, by her Litigation Guardian, Gary Walker (plaintiffs/respondents) v. Donald J. Ritchie, Harold Marcus Limited and The Wawanesa Mutual Insurance Company (defendants/appellants)

Stephanie Suzanne Walker, Gary Walker and Rosemary Walker (plaintiffs/respondents) v. The Wawanesa Mutual Insurance Company (defendant/appellant)

(C40260)

Indexed As: Walker v. Ritchie et al.

Ontario Court of Appeal

Catzman, Gillese and Lang, JJ.A.

April 28, 2005.

Summary:

The plaintiff driver (Stephanie) crested a hill and struck a tractor-trailer blocking the road as the defendant driver attempted to back it into his driveway. Stephanie, a 17 year old high school student, suffered catastrophic injuries, including brain damage, cognitive deficits and left side paralysis. Stephanie and her family brought a negligence action for damages against the defendant driver and the defendant owner of the tractor-trailer.

The Ontario Superior Court, in a judgment reported [2003] O.T.C. 3, found the defendants negligent and solely at fault. The court awarded Stephanie damages totalling $4,959,901. The family members were awarded damages under the Family Law Act. The plaintiffs were awarded costs of $440,167 plus a $192,600 premium. The defendants appealed portions of the damage award, including (1) the manner of calculating lost future income; (2) the award for loss of an interdependent relationship; (3) the lump sum award for the cost of a full-time nanny for seven years for child-care purposes; (4) the award for vocational rehabilitation and job coaching; (5) the award for technology and a fitness membership; (6) the finding that the "non-earner" benefits received from the no-fault insurer were not deductible from damages; and (7) the discount rate applied. The defendants also appealed the quantum of costs and the awarding of a premium.

The Ontario Court of Appeal dismissed the appeal respecting damages, but allowed the appeal in part respecting costs. The amount for counsel fees was reduced. Otherwise, the costs award, including the premium, was affirmed.

Damage Awards - Topic 488

Injury and death - General damage awards - Cost of housekeeping services and child care - The 17 year old female plaintiff suffered catastrophic injuries, including brain damage causing cognitive deficits, and partial paralysis - The trial judge awarded lump sum damages for the costs the plaintiff would incur in employing a live-in, full-time nanny for seven years to care for the plaintiff's children, if she had any - The defendants challenged the quantum of the award on the basis that the trial judge determined she had a 50% chance of a relationship, but calculated quantum assuming a 72% chance of having children - The defendants also submitted that the plaintiff would incur child care costs even if the accident had not happened, that the other parent would assist with child care and that the plaintiff's loss of future income should be reduced to account for her withdrawal from the workforce for child care purposes - The Ontario Court of Appeal rejected the submissions - The trial judge committed no error in assessing the quantum of damages - See paragraphs 59 to 71.

Damage Awards - Topic 488.1

Injury and death - General damage awards - Loss of future interdependent relationship - A 17 year old female plaintiff who suffered catastrophic injuries was awarded $125,000 damages for the loss of any future interdependent relationship - Such an award recognized the increased cost of living of a person living alone without sharing costs with a partner - The plaintiff's injuries made it unlikely that she would ever form, or sustain, an interdependent relationship - The trial judge accepted expert evidence quantifying the loss and applied a 25% deduction for the contingency that she would never have married even if she had not been injured and a further contingency that she might still get married despite her injuries - The trial judge applied a further negative contingency to address the defendants' concerns of double accounting for child care costs - The Ontario Court of Appeal held that the trial judge did not err in assessing damages - The damage award was firmly grounded in the evidence - See paragraphs 52 to 58.

Damage Awards - Topic 489.2

Injury and death - General damage awards - Retraining costs - The 17 year old female plaintiff suffered catastrophic injuries that rendered her competitively unemployable, but did not preclude her from doing some work for pay or on a volunteer basis - The trial judge awarded $135,000 damages for vocational rehabilitation and job training - The defendants challenged the award, submitting that the finding of competitive unemployability was incompatible with making the defendants liable for rehabilitation and retraining - The Ontario Court of Appeal held that the trial judge did not err in his damage award - Although the trial judge found the plaintiff to be competitively unemployable, this was not inconsistent with the additional finding that the plaintiff would likely work part-time for pay or as a volunteer - In fact, the trial judge's award for lost future income recognized this by applying a $100,000 negative contingency - Work for pay or as a volunteer was essential to the plaintiff's emotional stability and she was entitled to the required significant assistance to obtain paid or unpaid work - See paragraphs 66 to 71.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The 17 year old female plaintiff suffered catastrophic injuries, including brain damage with cognitive deficits, and partial paralysis - It was not certain whether the plaintiff would have attended university - The trial judge awarded damages for lost future income on the basis that the plaintiff would likely have attended university and would have lost income available to a university graduate - The defendants appealed, submitting that the trial judge erred in assuming that the plaintiff would have attended university - The Ontario Court of Appeal dismissed the appeal - The plaintiff had to establish a real and substantial risk of the loss of future earning capacity available to a university graduate, not that she would have lost that income on a balance of probabilities - The evidence supported the trial judge's conclusion that the plaintiff might have attended university - Further, the trial judge addressed the defendants' concerns by applying a 10% deduction for the contingency that the plaintiff would not have gone to university and a further deduction for the possibility of some future income - See paragraphs 30 to 40.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - [See Damages - Topic 1549 ].

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - In awarding a brain-damaged 17 year old plaintiff damages for lost future earnings, the trial judge assessed the loss on the basis of gender-neutral earnings statistics - The defendants submitted that the trial judge erred in failing to use earnings statistics for females only and that the statistics used did not reflect the plaintiff's most possible career path (teaching) - The Ontario Court of Appeal held that the trial judge did not err - The evidence supported general-neutral earnings statistics and teaching was only one potential career path - The plaintiff was not precluded from any potential career path - See paragraphs 41 to 51.

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - [See Damages - Topic 1549 ].

Damages - Topic 1748

Deductions for payments or assistance by third parties - Contractually - Insurance - "Non-earner" benefits - A 17 year old plaintiff suffering catastrophic injuries in a motor vehicle accident received "non-earner" benefits from the no-fault insurer - The defendants appealed the trial judge's finding that the "non-earner" benefits were not deductible under s. 267.8(1) of the Insurance Act from the damages awarded for lost future income - The Ontario Court of Appeal dismissed the appeal - "Non-earner" benefits were awarded to compensate the plaintiff for loss of daily life functions and were akin to general damages for loss of enjoyment of life - The benefits were not deductible under s. 267.8(1), because they were not payments for income loss or loss of earning capacity - See paragraphs 77 to 87.

Practice - Topic 7061

Costs - Party and party costs - Counsel fees - Increased or decreased fee (incl. premium) - The 17 year old plaintiff suffered catastrophic injuries in a motor vehicle accident - The plaintiff was awarded $440,167.90 for legal fees plus a $192,600 premium in addition to the partial indemnity costs - The Ontario Court of Appeal held that the trial judge did not err in awarding the premium given the result achieved and the financial risk undertaken by the plaintiff's counsel in funding the litigation because of the plaintiff's limited financial means - The court stated that "awarding a premium ought to occur only rarely and only when both factors - risk and result - cry out for an award in costs in excess of substantial indemnity costs. The risk must be based on evidence that the plaintiff lacked the financial resources to fund lengthy and complex litigation, plaintiff's counsel financed the litigation, the defendant contested liability and plaintiff's counsel assumed the risk not only of delayed but possible non-payment of fees. In our view, it is not necessary that the plaintiff be proved to be impecunious but it must be shown that the litigation was beyond the plaintiff's financial means. While risk must be present, it alone does not justify a premium - counsel for the plaintiff must also achieve outstanding success." - See paragraphs 104 to 120.

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Special or additional counsel - The Ontario Court of Appeal held that "fees for a second counsel are permissible under the cost grid but that the aggregate of counsel fees cannot exceed the maximum permitted under the costs grid" - See paragraph 102.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The Ontario Court of Appeal stated the standard of review of a trial judge's damage award: "a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion. It is only where a Court of Appeal comes to the conclusion that there was no evidence upon which a trial judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at trial was wholly erroneous, that a Court of Appeal is entitled to intervene" - See paragraph 28.

Cases Noticed:

Vollick v. Sheard et al. (2005), 197 O.A.C. 121 (C.A.), refd to. [para. 23].

Banihashem-Bakhtiari v. Axes Investments Inc. - see Bakhtiari et al. v. Axes Investments Inc. et al.

Bakhtiari et al. v. Axes Investments Inc. et al., [2003] O.T.C. 702; 66 O.R.(3d) 284 (Sup. Ct.), revd. in part (2004), 182 O.A.C. 185; 69 O.R.(3d) 671 (C.A.), leave to appeal refused [2004] S.C.C.A. No. 145, refd to. [para. 27].

Delrina Corp. v. Triolet Systems Inc. et al. (2002), 156 O.A.C. 166; 58 O.R.(3d) 339 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 189, refd to. [para. 28].

McAlpine (Robert) Ltd. v. Byrne Glass Enterprises Ltd. et al. (2001), 141 O.A.C. 167 (C.A.), refd to. [para. 28].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341, refd to. [para. 29].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 75 O.R.(2d) 622 (C.A.), refd to. [para. 30].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 38].

Tucker v. Asleson, [1991] B.C.J. No. 954 (S.C.), refd to. [para. 42].

Terracciano v. Etheridge et al., [1997] B.C.T.C. Uned. 656 (S.C.), refd to. [para. 42].

Gray v. Macklin et al., [2000] O.T.C. 866 (Sup. Ct.), refd to. [para. 42].

Audet v. Bates, [1998] B.C.T.C. Uned. 352 (S.C.), refd to. [para. 43].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al. (2001), 293 A.R. 41; 257 W.A.C. 41 (C.A.), refd to. [para. 44].

Brownell v. Tannahill (2000), 139 O.A.C. 109; 52 O.R.(3d) 227 (C.A.), refd to. [para. 85].

Ligate et al. v. Abick et al. (1996), 89 O.A.C. 355; 28 O.R.(3d) 1 (C.A.), refd to. [para. 89].

Martin v. Listowell Memorial Hospital et al. (2000), 138 O.A.C. 77; 51 O.R.(3d) 381 (C.A.), refd to. [para. 90].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 94].

Manielly v. Moran et al., [2004] O.T.C. Uned. 521 (Sup. Ct.), refd to. [para. 100].

Basdeo et al. v. University Health Network et al., [2002] O.T.C. 54 (Sup. Ct.), refd to. [para. 100].

Young v. Toronto Star Newspapers Ltd. et al., [2003] O.T.C. 1102 (Sup. Ct.), refd to. [para. 100].

Board of Education of Upper Canada School District v. Conseil de district des écoles publiques de langue française No. 59, [2002] O.T.C. 70 (Sup. Ct.), refd to. [para. 100].

Andersen v. St. Jude Medical Inc., [2004] O.J. No. 3102 (Sup. Ct.), refd to. [para. 101].

Dybongco-Rimando Estate v. Lee - see Dybongco-Rimando Estate et al. v. Jackiewicz et al.

Dybongco-Rimando Estate et al. v. Jackiewicz et al., [2003] O.T.C. 152 (Sup. Ct.), refd to. [para. 101].

Celanese Canada Inc. v. Canadian National Railway Co. (2005), 196 O.A.C. 60 (C.A.), refd to. [para. 102].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 105].

Roberts v. Morana - see C.R. et al. v. Morana et al.

C.R. et al. v. Morana et al. (1998), 53 O.T.C. 168; 37 O.R.(3d) 342 (Gen. Div.), affd. (2000), 135 O.A.C. 123; 49 O.R.(3d) 157 (C.A.), refd to. [para. 106].

Lurtz v. Duchesne et al. (2005), 194 O.A.C. 119 (C.A.), refd to. [para. 106].

Ontex Resources Ltd. v. Metalore Resources Ltd. et al. (1996), 15 O.T.C. 81 (Gen. Div. Master), refd to. [para. 109].

Desmoulin v. Blair (1994), 76 O.A.C. 1; 21 O.R.(3d) 217 (C.A.), refd to. [para. 111].

Mortimer et al. v. Cameron et al. (1994), 68 O.A.C. 332; 17 O.R.(3d) 1 (C.A.), leave to appeal refused (1994), 178 N.R. 146; 76 O.A.C. 400 (S.C.C.), refd to. [para. 114].

Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1999), 127 O.A.C. 286; 48 O.R.(3d) 228 (C.A.), leave to appeal refused (2000), 264 N.R. 191; 145 O.A.C. 200 (S.C.C.), refd to. [para. 115].

Statutes Noticed:

Insurance Act Regulations (Ont.), Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Reg. 403/96, sect. 2(4) [para. 83]; sect. 12(1) [para. 82].

Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - see Insurance Act Regulations (Ont.).

Counsel:

Ronald G. Slaght, Q.C., and Elizabeth Bowker, for the respondents;

Earl A. Cherniak, Q.C., and Andra L. Maxwell, for the appellants.

This appeal was heard on December 7-8, 2004, before Catzman, Gillese and Lang, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered jointly by Gillese and Lang, JJ.A., and released on April 28, 2005.