The Damages Trilogy, as well as subsequent judgments issued by the Supreme Court of Canada and other courts across the country, make clear that an injured individual should be compensated so that he or she “can live as complete and independent a life as reasonably attainable through an award of damages.”12 The case law favours in-home care, where the plaintiff is able to exercise the range of choice that any other non-injured person in this country would ordinarily be able to, including what daily activities to partake in, who to spend time with, whether to adopt a pet, and what colour to paint the walls. A cost of future care assessment is “not an exercise in ‘how to save money’ or to permit the plaintiff to ‘get by’ or ‘make do’ with cheaper care”,13 but “how best to compensate the plaintiff for her grievous injuries and her loss of quality of life that occurred through no fault of her own but, rather, because of the negligence of the defendant.”14
In this way, the Damages Trilogy implicitly promotes a rights-based approach to long-term care, which is rooted in the principles of choice, independence, and equality between disabled and non-disabled Canadians. The case law on care planning is augmented by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which has now been incorporated into Canadian15 and British Columbian statutes16 and, under general principles of statutory construction, ought to inform the interpretation of domestic law.17 Under the UNCRPD, persons with disabilities not only possess the right to live independently and be included in the community, but they must also enjoy respect for their inherent dignity and individual autonomy, particularly with regard to decisions that impact their lives. This is in line with the practice of courts in British Columbia, which have often considered the plaintiff’s preferences to be an important factor in opting for one model of care over another.18
Wandering from Precedent: Cost-Saving Over Adequate Care
Despite the clarity of the Damages Trilogy and subsequent judgments, courts have often wandered from the principles that underpin this precedent. One reason for this is because defence counsel frequently propose substandard models of care, which are framed as providing services that are analogous to what is provided through in-home care but at a reduced cost. Historically, the defence touted the option of having disabled plaintiffs live in highly institutionalized “group homes” and long-term care facilities,19 but given contemporary policy trends in favour of community-based care, proposals for shared living programs, like those sponsored by Community Living B.C., are now more common.
Defence care plans that rely on Community Living B.C. services are flawed for at least three reasons. First, such a proposal may inappropriately foist the consequences of their client’s negligence onto taxpayers, as Community Living B.C. is a Crown corporation funded by the province.20 Second, on its own admission, requests for Community Living B.C.’s services far outpace funding and availability, which “jeopardize[s] the sustainability” of its programming.21 Third, and most importantly, the success of such shared living arrangements, at present, depend entirely on the benevolence of the home share provider. The service recipient does not live in their own home; they reside in another person’s home, where they do not exercise true independence, choice, or control over their lives and are at the mercy of largely untrained and almost entirely unregulated home share providers.22
One recent case provides an extreme example of the kind of conditions persons in shared living arrangements may experience. Florence Girard, a 54-year-old woman with Down syndrome, died of starvation in the Port Coquitlam home of her home share provider in 2018, after that home share provider installed a locked gate on her bedroom door and unilaterally decided to stop taking her to medical appointments and social activities. This caretaker’s abuse went unchecked because the non-profit organisation overseeing the shared living arrangement, which was funded by Community Living B.C., had provided virtually no oversight of Florence’s care in the two years preceding to her death.23
