Court upholds future cost of care award that exceeded the highest amount sought by plaintiffs

Future care costs may be on the rise in Ontario, given the Court of Appeal’s decision to uphold a jury decision to award plaintiffs an amount more than $1 million in excess of the highest amount sought.

In the 2006 Superior Court case Sandhu v. Wellington Place Apartments, Harvinder Sandhu fell from a fifth-floor apartment window, landed on the cement pavement below and suffered catastrophic injuries as a result.

The window through which Sandhu fell had a large hole in the screen and lacked a child safety lock. The building manager and property manager were made aware of this roughly three weeks before Sandhu’s fall, but failed to repair or make the appropriate adjustments to the window.

Ontario Superior Court Justice Carolyn Horkins allowed a jury award of $10.942 million, which exceeded by roughly $1.3 million the highest amount sought by the plaintiffs’ counsel.

Wellington Place appealed, arguing before a three-judge panel at the Court of Appeal “this higher amount was not based on any credible evidence or theory of compensatory damages for future care.”

The panel noted the jury was only asked to assign a figure for the cost of future care; it was not asked to explain how the figure was arrived at. “They were free to make their own calculation, provided that the calculation was based on the evidence.”

In the evidence, the court noted, it appeared the respondents under-estimated the hourly rates of caregivers and tutors. “Changing these two items alone would have resulted in a future care cost award in excess of that actually awarded,” the panel wrote in its decision.

“We give no effect to this ground of appeal.”