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The primary focus of this paper is on loss of home maintenance capacity claims in tort for the non-catastrophic, non-fatality case under Bills 59 and 198. This paper brings together the collective wisdom of the knowledgeable authors listed in the references below, and attempts to provide a summary of the law and evidence which support these important claims.
Accident Benefits under the SABS
Statutory accident benefits coverage under Section 22 of the SABS covers "housekeeping and home maintenance" claims for only the first 104 weeks post-accident, and these benefits are capped at $100.00 per week (for noncatastrophic insureds)1. Plaintiffs' counsel should be proactive and vigilant in ensuring that their clients successfully obtain these benefits. Despite the contention of some defence counsel, failure to obtain housekeeping or home maintenance benefits from the accident benefits carrier does not bar recovery of these benefits in tort. However, if your client is successful in receiving these benefits from her own insurer, it usually bolsters the argument that these expenses are legitimate and that your client's accident-caused injuries and resulting functional restrictions warrant loss of home maintenance capacity benefits.
In Tort
Past and future loss of home maintenance capacity claims are now a standard award in tort in the right cases (i.e. for snow removal, lawn/garden care, general repair and maintenance, cleaning tasks, laundry chores, etc.). In contrast with other jurisdictions, Ontario courts have generally classified these damages as a component of future care costs rather than a separate head of damage or subhead of the loss of working capacity. Where the court finds that housekeeping or handyman services can no longer be performed, or are performed at a lower capacity, these services are then generally valued in Ontario as an expense at replacement cost value. Stated simply, this is a finding2 of how many hours of labour would have been expended by the plaintiff at determined market wage/replacement rates resulting in a sum per year for a substitute. In 2004, the average hourly housekeeping rate for Ontario is $13.84.3
Focus on the Loss of Capacity
To successfully advance a claim for loss of home maintenance capacity, it is not necessary to prove that the plaintiff suffers a complete inability from performing specific chores or tasks. It is only necessary to show that an unreasonable degree of pain and discomfort is experienced during and/or after the chores are performed. However, John McLeish advises: "Motivated plaintiffs and plaintiffs who try to get back to a normal life are more highly regarded by judges and juries than those who sit back and expect to get paid a lot of money. To the degree that it is possible, an injured person should make attempts to perform handyman chores right up to the time of trial. If at a mediation or trial a defence lawyer asks the injured person how he knows he cannot perform a specific function without pain and discomfort, the person can respond that he tried vacuuming one week ago and after 5 minutes had to stop because of pain. That is a much better answer than, "Well, I tried a year and half ago and I couldn't vacuum then and don't think much has changed."4 The Alberta case of Wade v. Baxter5 clarifies the law with respect to assessing this loss. Justice Slatter states that: "When a person is injured and can no longer perform all of her household tasks, she has a number of options including: Loss of Home Maintenance Capacity Claims by Sandev Singh Purewal
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(a) she can simply "do without". In other words she can not clear the snow, or not mow the lawn, or not vacuum, or at least not do so as often. (b) she can soldier on and complete the tasks herself. In many cases this will involve a cost to her in terms of increased pain, and in a loss of extra time that could otherwise be devoted to leisure activities or resting. (c) she can hire replacement labour to actually complete the tasks that she is no longer able to do at her previous level of efficiency. (d) she can rely on family and friends for assistance. From a legal perspective, it does not make any difference which option the Plaintiff chooses. The loss of housekeeping capacity is the same in each one, and the award of damages should be identical. It is irrelevant that the Plaintiff may receive an award for loss of housekeeping capacity, and never expend any of it on third parties for the purposes of having that housekeeping done. To argue otherwise is to confuse the assessment of the loss of capacity with the quantification of the loss. That the Plaintiff can still do some tasks, but more slowly and with pain, is also relevant."6 (Emphasis added)
Not a "Health Care" Expense
A loss of home maintenance capacity claim is not a claim for health care expenses and should not be dependant on an injured party meeting the threshold (under Bill 198). The leading case dealing with the ability to recover future housekeeping and home maintenance damages is the decision in Briggs v. Maybee7. Justice Belch found that there was ambiguity in Bill 59's dealing with housekeeping and home maintenance expenses beyond the two-year period where the injury is not catastrophic. Justice Belch concluded: "I am not satisfied that the definition of "health care" was intended to include housekeeping and home maintenance.
Although the purpose and intent of Bill 59 is clear, its language is not. It is my decision the plaintiff's claim for pecuniary damage, here the expenses for future housekeeping and home maintenance, is allowed to go forward as a separate head of damages for the jury's consideration."8 However, in Morrison v. Gravina9, Greer J. held that the term "health care" expense was broad in meaning and that the plaintiff was barred from recovering housekeeping or home maintenance damages due to the statutory defence against liability for health care expenses under s. 267.5(3) of the Insurance Act. In Lodge v. Regier, Kennedy J. reviewed the two conflicting decisions in Briggs and Morrison, and noted that it was clear (and unfortunate) that the Briggs decision had not been reviewed by the Court in Morrison. Kennedy J. then stated that: "I prefer the reasoning and the logic of Justice Belch in the Briggs case. The jury in this case shall consider the items presented as an expense and as a separate head of damage at the end of trial. ... In my view, health care as defined does not equate with the items presented, such as lawn and garden care, painting, etcetera, by any stretch of the imagination. It is not clear to me that the intent of the legislature, in enacting the new insurance legislation was to totally deprive the plaintiff of remedy and/or indemnity for the nature of the anticipated expense. The plaintiff should be protected by insurance legislation unless there is a clear direction otherwise."
Supporting the Claim
The success of the loss of home maintenance capacity claim in tort will depend on numerous evidentiary considerations:
1. The plaintiff's own evidence about the loss of ability to perform housekeeping/handyman tasks. It is critical to properly prepare a client for defence counsel's questions at examinations for discovery (and trial), and for a client to provide a reasonable explanation as to what impairments prevent the performance of any given home maintenance task. The client's testimony should be consistent with the anecdotal history to medical treatment providers (and the "Activities of Daily Living" form found in most accident benefits files, for example). Winter, 2005 THE LITIGATOR 63
2. The FLA claimant's evidence should also be consistent with that of the plaintiff, and ought to include details of:
- all those housekeeping/handyman chores that the FLA claimant now performs that s/he did not perform at all pre-accident; all the chores that the FLA claimant did to some extent pre-MVA, but now puts in more hours doing; how many hours per week the FLA claimant is spending performing the chores that the plaintiff would have otherwise performed.
3. The medical evidence should clearly support a plaintiff's claim of (complete or partial) disability for each specific household task. Specific questions need to be put to the treating and consulting medical experts with respect to the plaintiff's accident caused injuries and functional restrictions which reduce his ability to perform housekeeping and handyman tasks.
4. The replacement cost evidence should reasonably list the specific home maintenance tasks, and the time and cost to complete them. A comprehensive report prepared by an economist or future care costs expert quantifying present and future costs is recommended in appropriate cases.
Conclusion
In the final analysis, success on this front is dependant upon plaintiffs' counsel not succumbing to the usual and entirely predictable defence paradigm that loss of home maintenance capacity claims are nothing more than a poorly disguised effort to "gild the lily". That being said, the successful recovery of such damages does require the careful and systematic development of the requisite factual, medical and economic foundations. Sandev Singh Purewal is a Member of OTLA and practices with Greg Monforton & Partners in Windsor, ON.
References
Brown, Cara L.. "Valuable Services Trends in Housekeeping Quantum Across Canada, 1990-2001" The Advocates' Quarterly (Vol. 27, No. 1, April 2003) at pp. 71-109.
Brown, Cara L. "Housekeeping Awards & Replacement Rates, 2004" The Economics Editor (Aug. 2004, Vol. 1, Issue 107).
Gunter, Susan E. "Cleaning House: Recovering for Loss of Housekeeping and Home Maintenance Expenses in the Non- Catastrophic Tort Case" (OTLA: 2002 Spring Conference)
Murray, Andrew C. "Bill 59: What Expenses can be Claimed as Tort Damages?" The Litigator (Summer, 2002) at pp. 27-30. Shannon, Michael. "Proving Future Losses" (OTLA: 2003 Fall Conference Workshop)
McLeish, John A. "5 Tips for Success in the New Regime" (LSUC:
Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases, 2003) McLeish, John A. & Roger G. Oatley. The Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases (Aurora: Canada Law Book, 2002) at pp. 13-8 to 13-9.
Notes
1 Section 22 of the Statutory Accident Benefits Schedule (" SABS") deals with "Housekeeping and Home Maintenance". Section 22 of the SABS falls under Part VI - Payment of Other Expenses, and is distinct from Part V's Medical, Rehabilitation and Attendant Care Benefits.
2 An occupational therapist, in an in-home assessment, can assess and provide evidence of the plaintiff's household activities and abilities, and the extent to which this capacity has been impaired due to the accident-caused injuries. An FAE assessment by a physiotherapist and kinesiologist can also be effective evidence of a plaintiff's functional restrictions with respect to home maintenance tasks.
3 Brown, Cara L. "Housekeeping Awards & Replacement Rates, 2004" The Economics Editor (Aug. 2004, Vol. 1, Issue 107). *based on Statistics Canada's 2001 Census; 1999 Ontario Wage Survey; Ontario Job Futures NOC G811.
4 McLeish, John A. "5 Tips for Success in the New Regime" (LSUC: Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases, 2003)
5 [2001] A.J. No. 1471 (QL) (Alta. Q.B.).
6 Wade v. Baxter, supra at para. 142. Slatter J. goes on to state at paras., 143-144 that: A court could attempt to estimate a loss of housekeeping capacity in percentages, like a permanent partial disability. This could be done globally, based on the overall loss of housekeeping capacity suffered by the Plaintiff, or on a task-by-task basis, to come up with a global loss of housekeeping capacity. Another approach is to estimate the number of "lost hours" of housekeeping capacity that the Plaintiff has suffered as a result of the injury. Trying to calculate a loss of housekeeping capacity is more an art than a science. Once some estimate of loss of housekeeping capacity has been made, the second part of the problem must be confronted: how is this loss to be quantified? This problem 64 THE LITIGATOR Winter, 2005 of converting injuries and disability into money is common in the calculation of personal injury damages, and is not unique to a loss of housekeeping claim. With a housekeeping claim there is a risk of overlapping with the general damage claim, for example where the Plaintiff can still do something, but with pain. The most common method of quantification is to try and convert the lost capacity into an equivalent number of hours of effort required. The court then looks at the economic value of housekeeping services in the market, and uses that to quantify the loss. In practice, the calculation of the extent of loss of household capacity, and the quantification of that loss, are often rolled into one. But the fact that market rates for household labour are used to quantify the claim does not mean that the damage award is based on the assumption that the Plaintiff will actually go into the market to purchase those services.
7 [2001], O.J. No. 936 (QL) (S.C.J.)
8 Briggs v. Maybee, supra. at paras. 26-27.
9 [2001] O.J. No. 1208 (QL) (S.C.J.)
