Written By: Michael Warfe and Endrita Isaj, Student-at-Law
In a mid-trial ruling, Tranquilli J. held that the plaintiffs may pursue their claim for housekeeping and attendant care losses as a result of injuries sustained in a motor vehicle collision in December of 2012.
The parties took differing positions on the matter after the testimony of the plaintiff participant expert witness, an occupational therapist (OT), at trial. The defendant objected to the OT’s opinion evidence, claiming that the plaintiff had eliminated these past care claims at her examination for discovery in 2015, and would face prejudice if the plaintiff was allowed to pursue these claims at trial. The plaintiff submitted that the defendant had notice of the claims for housekeeping and attendant care losses.
At an examination for discovery on July 10, 2015, previous defence counsel had asked plaintiff counsel, “And counsel, will you confirm for the record that there is no economic component being advanced for this plaintiff?” to which plaintiff counsel answered, “That’s correct, there is no, none being advanced.”[1]
The plaintiff maintained that she did not eliminate her past care claim with this answer. Defence counsel argued that the questions at the plaintiff’s examination for discovery did not put the defendant on notice of a pecuniary loss being advanced due to the express acknowledgement that no economic claims were being advanced.
Justice Tranquilli held that the definition of “economic loss” lacked the necessary precision in narrowing the nature and scope of the damages being claimed. As such, there was no duty on the plaintiff to correct her answer on discovery.
Justice Tranquilli held the defendant should have clarified their understanding of the issue. This was in light of the fact that the defendant had the occupational therapist’s report for some time and knew the occupational therapist was going to be called as a participant witness at trial. Moreover, Tranquilli J. found that the broad nature of the term “economic loss” and the various bases on which damages can be claimed meant that the defendant ought to have clarified the issue and their understanding of economic loss.[2] The defendant had also been put on notice of the claims for housekeeping and attendant care in a pre-trial that had taken place in July 2018.
Consequently, Tranquilli J. was satisfied there would be no prejudice to the defendant and as such, the plaintiffs were granted leave to lead evidence in support of past care claims related to housekeeping and attendant care claims.
[1] Solanki v. Reilly, 2021 ONSC 1326 at para 8.
[2] Ibid at para 11.
