Successfully applying these principles, however, is a difficult task. Aside from the persistent challenge of marshalling evidence to establish the need for in-home care, courts have occasionally demonstrated a misapprehension of the case law, resulting in awards that are insufficient to provide adequate care. Further, defendant doctors and health authorities will often try to offset the costs associated with their negligence by arguing that a plaintiff can receive adequate care in an institution, group home, or shared living arrangement — proposals which are very often irreconcilable with the principles underpinning the case law. Plaintiffs’ counsel must be strategic and forceful in opposing these claims, in order to ensure that their client secures the resources they need to live a healthy and fulfilling life, as they are entitled to under the law.
This paper will argue that, when developing a care plan with clients and experts and presenting this plan to opposing counsel and the court, plaintiffs’ counsel is best served by emphasizing a rights-based approach to long-term care planning, rooted in the bedrock principles of autonomy, choice, and independence that were espoused by the Supreme Court of Canada’s in the “damages trilogy”6 and subsequent judgments. To do so successfully, plaintiffs’ counsel must engage with experts who are able to tender evidence that endorses in-home care and undermines alternate forms of care which are substandard and inappropriate.
Principles of Future Care Awards: The Damages Trilogy
Costs for care, more so than any other head of damage, are notoriously difficult to determine, given the inherent uncertainty of the future. For this reason, future care costs are said to be “assessed” rather than “calculated”, and the “overall reasonableness of the final award for future care is more important than accuracy in the individual mathematical steps used to arrive at that award.”7
In guiding the assessment of costs of future care, the foremost authorities are the three cases that comprise of the Supreme Court of Canada’s 1978 Damages Trilogy: Andrews v. Grand & Toy Alberta Ltd., Thornton v. Prince George School District No. 57, and Arnold v. Teno. The approach to costs of future care that was endorsed in these cases was summarized by Mr. Justice Spencer in Arnold: “the prime purpose of the Court is to assure that the terribly injured plaintiff should be adequately cared for during the rest of her life.”8
For a catastrophically injured infant plaintiff with a normal life expectancy, adequate care may be staggeringly expensive. Of course, an award for adequate care must be reasonable and fair to both parties. Yet, as Mr. Justice Dickson noted in Andrews, “fairness to the other party is achieved by assuring that the claims raised against him are legitimate and justifiable”9 — not by providing an unprincipled deduction to the costs incurred through the tortfeasor’s negligence.
In Andrews, the Supreme Court of Canada considered a judgment of the Alberta appellate court. The appeal court had concurred with the trial judge that in-home care was preferrable to institutional care, but significantly reduced the trial judge’s award for that in-home care, solely on the basis that it was “vastly the most expensive” of all available options.10 The Supreme Court of Canada rejected this line of reasoning, on the following basis:
It cannot be unreasonable for a person to want to live in a home of his own. … With respect to Andrews’ disinclination to live in an institution, the [Appeal] Court commented: “He might equally say that he would not live in Alberta, as he did not wish to face old friends, or for any other reasons, and that he wished to live in Switzerland or the Bahamas.” Andrews is not asking for a life in Europe or in the Caribbean. He asks that he be permitted to continue to live in Alberta and to see his old friends, but in his own home or apartment, not in an institution.11
