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By Ian Aikenhead, Q.C.

Courts make in-trust awards as a separate head of damage, to compensate the plaintiff’s individual family members for their housework, nursing, and domestic assistance to the injured plaintiff. This award of damages is distinct from an award of loss of housekeeping capacity, which is money directed toward compensating the plaintiff for their loss of or diminished capacity to do regular housekeeping tasks.

  1. Claims for household duties, nursing, and other services rendered by the plaintiff’s immediate family are allowed when the plaintiff establishes the need for such services as a consequence of the injury and provided that the services are rendered to or on behalf of the plaintiff. The plaintiff must prove on a balance of probabilities that: the family member providing the services experienced direct eco­nomic loss because of the time and effort that went into performing those duties; or
  2. the family member’s efforts resulted in replacing expenses which would otherwise have been incurred, such as hiring a housekeeper.

The issue then is whether the evidence demonstrates the hus­band’s extra hours of household work “replaced expenses to any significant extent”, within the meaning of Cummings v. Olson, supra. While there is no evidence that the plaintiff and her husband discussed the option of hiring others to carry out these duties, that would have been the only option to the husband performing essential household duties formerly performed by the plaintiff. It was not an option to leave duties such as laundry, meal preparation and clean-up unperformed. While there is no evidence
before me, as there was in McTavish v. MacGillivray  of the actual cost of hiring house cleaners, the plaintiff relies on little more than the minimum wage.

There is no minimum threshold of grievousness of injury before an in-trust claim may be awarded. The questions to be considered are:

  1. Was the nature of the services simply part of the usual “give and take” between family members, or did they go “above and beyond” that level?
  2. Were the services necessitated by the plaintiff’s injuries or would they have been provided in any event?

The Court held that as the services did not exceed what was expected from a family relationship and there was no opportunity loss (that is, the plaintiff’s mother did not suffer any economic loss since she was off work on medical leave and under full salary), no award could be made.

In trust awards will not be made for services that the plaintiff received that would reasonably have been provided out of natural love and affec­tion of family members. Compensation should only be provided when the services provided extend above and beyond what would reasonably be expected, though again this is not much of a barrier to the plaintiff where a spouse or family member has been devotedly attentive in assist­ing with his or her care.

Services in the nature of those which would otherwise have been provided by professionals at a cost are compensable.

The plaintiff is not under any legal or moral liability to pay any amount awarded “in trust” to the provider of the services, as the services are pro­vided gratuitously. However, the courts have made it clear that such awards are intended to be paid to the family member providing the service.

Article by Ian Aikenhead, Q.C.


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