Knowing Vital Future Care Cases
Author(s): Wendy Moore Mandel
February 10, 2012
There are well established legal principles that guide the assessment and award of future care claims. These principles, described in an evolving body of case law, assist the court in its determination of future care awards. Counsel who advance claims for future care on behalf of their clients and counsel who oppose these claims, should be aware of the cases that have established the basis for future care claims and of the cases that provide instruction about how to assess and prove these claims.
This post briefly reviews some important case law regarding the basic principles that support claims for future care; how future care claims are assessed; and the requirements to prove future care claims at trial.
Full Compensation for Future Care
The basic principles supportive of future care claims date back to a set of three cases decided by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd.1, Thornton v. School Dist. No. 57 (Prince George) et. al.2 and Arnoldv. Teno3, the “Trilogy”.
In Andrews4, Dickson J. confirmed that “full compensation” is the paramount concern of the courts in cases of severely injured victims. This principle of full compensation is echoed throughout subsequent case law that evaluates future care claims. In Andrews, the court held that the care setting most advantageous to the Plaintiff was the one that should be awarded and that the Plaintiff cannot be forced to mitigate his/her loss by accepting a lesser standard of care5.
Professor Cooper-Stephenson emphasizes this principle of compensation in his text, Personal Injury Damages in Canada. According to Professor Cooper-Stephenson:6
The full compensation thesis established in the Trilogy has been used over and over as a background principle to justify the provision of home care for seriously disabled Plaintiffs. The general approach was affirmed by McLachlin J. in Watkins v. Olafson7, where she stated that the trial Judge’s conclusion on the need for home care was “in conformity with the emphasis on full and adequate compensation for seriously injured Plaintiffs expressed by this court in Andrews…
McLachlin J. reasserted the pre-eminence of the compensatory principle inRatych v. Bloomer8, stating that “the Plaintiff is to be given damages for the full measure of his loss, as best as can be calculated.”
The Trilogy does not speak of “minimal”, “lowest standard” or “marginal” compensation. The authorities support awards of compensation that will provide a high standard of future care for injured Plaintiffs. Professor Cooper-Stephenson has described the standard of care in this manner:9
The establishment of this very high standard of post-accident care means that Plaintiffs can claim almost any anticipated expenses that will facilitate their health, including both their physical and mental welfare.
Professor Cooper-Stephenson further explains:10
The standard of future care to which an injured Plaintiff is entitled is higher than that normally provided under statutory compensation and rehabilitation schemes.
As stated by Dickson J. in Andrews:11
The standard of care expected in our society in physical injury cases is an elusive concept. What a legislature sees fit to provide in the cases of veterans and in the cases of injured workers and the elderly is only of marginal assistance. The standard to be applied…is not merely “provision” but “compensation”: i.e. what is the proper compensation for a person who would have been able to care for himself and live in a home environment if he had not been injured?
The principle of full compensation for future care is also recognized as a response, in part, to the arbitrary limit placed on non-pecuniary damages. In his text, The Law of Damages, Professor Waddams states:12
The tenor of Dickson J.’s judgment in Andrews v Grand & Toy, makes it clear that the court will lean in favor of the Plaintiff in judging the reasonableness of his claim. The court made it plain that the restraint imposed on damages for non-pecuniary losses was an added reason for ensuring the adequacy of pecuniary compensation.
In keeping with the principle of full compensation for future care, the courts have accepted a lesser standard of proof when awarding future care claims.
In Schrump et. al. v. Koot et. al.13, the Ontario Court of Appeal explained that future care costs are awarded based on a “reasonable chance” that the losses will occur.
In Graham v. Rourke14, the Ontario Court of Appeal held that if the Plaintiff establishes a real and substantial risk of future pecuniary loss, s(he) is entitled to compensation.
In order for a court to conclude that there is a real and substantial risk of a future loss, the Plaintiff need not prove the loss on a balance of probabilities, but must establish that it is more than mere speculation.15
1 Andrews v. Grand & ToyAlberta Ltd.,  2 S.C.R. 229
2 Thornton v. School Dist. No. 57 (Prince George) et. al., 1978 Can LII 12 (SCC),  2 SCR 267
3 Arnold v. Teno,1978 Can LII 2 (SCC),  2 SCR 287
4 Andrews, supra at page 241
5 Andrews, supra at page 242
6 Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd Edition (Scarborough: Carswell, 1996) at page 411
7 Watkins v. Olafson, 1989 Can LII 36 (SCC),  2 SCR 750
8 Ratych v. Bloomer, 1990 Can LII 97 (SCC),  1 SCR 940
9 Personal Injury Damages in Canada, supra
10 Personal Injury Damages in Canada, supra
11 Andrews, supra at page 246
12 Stephen Waddams, The Law of Damages (Loose-Leaf Edition), (Toronto: Canada Law Book, 1999) at paragraphs 3-63
13 Schrump et. al. v. Koot el. al. (1977), 18 O.R. (2d) 337 (C.A.)
14 Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.) at 643
15 Athey v. Leonati, 1990 CanLII 183 SCC,  3 S.C.R. 458 (S.C.C.) at paragraph 27