In McIntyre v. Docherty, the Ontario Court of Appeal considered what principles should govern claims for damages for loss of housekeeping capacity in personal injury actions. The detailed analysis undertaken by the panel is certain to become the standard used to evaluate such claims from now on.
The context in which this issue arose for consideration by the Court of Appeal was a commonplace one. The plaintiff had been injured in a car accident and had suffered soft tissue injuries. At trial, the jury awarded non-pecuniary general damages of $92,500, damages for “past housekeeping inefficiency” in the amount of $5,000, damages for past loss of housekeeping capacity of $10,400 (the plaintiff had sought $41,000) and damages for future loss of housekeeping capacity of $44,535 (the plaintiff had sought $179,500).
The defendant appealed, arguing that the $5,000 award for housekeeping inefficiently should have been included as part of the non-pecuniary damages for pain and suffering and not treated as a separate head. With respect to the award of $10,400 for past loss of housekeeping capacity, the defence contended that no damages should be recoverable because the evidence was that the plaintiff had been assisted with housekeeping work by her family members, who had not asked for compensation. Counsel argued that any claim of this sort should be made under s. 61 of the Family Law Act, and no such claim had been made here.
At first blush, what jumps out of the ruling is the C.A.’s affirmation that it is not appropriate to evaluate a plaintiff’s claim for loss of past housekeeping by reference to replacement value. This proposition was advanced in Fobel v. Dean – a 1991 decision of the Saskatchewan Court of Appeal. However, the C.A. also seemed to accept that the replacement cost values were relevant in assessing the non-pecuniary damages – another proposition put forth in Fobel.
McIntyre suggests that the damages for past loss of housekeeping, in circumstances where expenses haven’t actually been incurred by the party claiming them, should be valued at something less than the replacement cost. Unfortunately, the Court did not explain how the replacement cost values should be used or considered in assessing non-pecuniary damages for past loss of housekeeping. The Court did make it clear though, that since Fobel, many courts have placed too much emphasis on replacement cost values to assess past housekeeping losses.
It seems that while the C.A. said that past housekeeping losses are not to be compensated by reference to replacement value, this is not the case for future housekeeping losses. The panel said that it is unnecessary for the plaintiff to satisfy the court of an intention to employ third-party help in order to receive a pecuniary award for future loss. The C.A. said it is for the plaintiff to decide whether he or she will employ a homemaker or whether he or she will struggle with her housekeeping and spend the damage award on luxuries that would otherwise be unavailable.
The focus of the decision was on assessing the value of the pre-trial loss of housekeeping claim for an injured party – not an FLA claimant who is entitled to damages pursuant to section 61 of the FLA. (In fact, the appellants argued that the injured party couldn’t receive an award for loss of housekeeping when a family member performed the work without pay since that family member would be entitled to pursue the claim pursuant to section 61 of the FLA.)
The case doesn’t appear to change anything in terms of claims for future loss of housekeeping claims, which are pecuniary in nature and can be measured with reference to replacement cost, provided the statistics underlying the replacement cost numbers make sense in the context of the claim.
With respect to past losses, this is what the Court had to say:
Assessment of pre-trial losses
The court noted that there were three scenarios under which a plaintiff might seek damages for loss of housekeeping:
- the plaintiff might leave some or all of the housekeeping left undone;
- the plaintiff might perform some or all of the housekeeping but in a less efficient manner; and
- the plaintiff might rely on paid or unpaid third parties to perform some or all of the housekeeping.
The court then went on to explain how past losses should be assessed under each of those three scenarios.
a) Work left undone
The court went back and forth about the reasons why it might or might not be appropriate to award pecuniary damages for pre-trial losses associated with a plaintiff’s inability to perform some or all housekeeping tasks and where a third party does not do the work in the injured person’s stead. At the end of all of this, the Court said that since the plaintiff’s claim was not for damages for work not done it was unnecessary to come to a conclusion regarding the factors that ought to be considered in assessing non-pecuniary damages and whether undone work can give rise to a separate claim for pecuniary damages. The C.A. said that these issues might arise in a future case where the court will have the benefit of a full factual foundation and complete legal argument.
b) Work done inefficiently
With respect to pre-trial losses for work done by the plaintiff but with pain or less efficiency the C.A. said that the plaintiff should receive non-pecuniary damages to reflect the increased pain and suffering on the plaintiff and any reduction in the standard of housekeeping on the plaintiff.
c) Work performed by third parties
With respect to work performed by third parties, the plaintiff is entitled to the reasonable replacement costs of hiring third parties as part of his or her special damage claim.
Assessment of future losses
The jury in McIntyre awarded the plaintiff $44,535 for future loss of housekeeping. The appellant argued that this award was not available since there was no evidence that the plaintiff was going to retain or pay third parties to do housekeeping for her.
The C.A. looked at the Fobel decision and observed that the approach to this pecuniary damage claim for future lost housekeeping was to apply a replacement cost approach using a combination of the substitute homemaker and catalogue of services approaches that have been widely accepted by Canadian courts. The C.A. said this combined approach, which was not challenged by the either party, catalogues the plaintiff’s housekeeping functions and then allocates those functions between direct labour (such as cooking and cleaning) and household management. Each category is then quantified based on the community’s fair market salary of each occupation and totalled to arrive at a weekly salary.