1

Indexed as:
Lapensee v. Ottawa Day Nursery Inc.

Between
Rachel Lapensee, an infant under the age of eighteen years,
by her next friend, Viviane Lapensee, and Viviane Lapensee,
Plaintiffs
and
Ottawa Day Nursery Incorporated and Monique Couvillon,
Defendants

[1986] O.J. No. 63

35 C.C.L.T. 129

34 A.C.W.S. (2d) 494

Action No. 1159/76

Supreme Court of Ontario - High Court of Justice

Toronto, Ontario

Judgment: January 31, 1986

Sutherland J.

Richard Addelman, for the plaintiffs.

A.T. Hewitt, Q.C., for the defendant, Ottawa Day Nursery Incorporated.
Richard Minard, for the defendant, Monique Couvillon.

SUTHERLAND J.:-- This action for damages arises out of an accident in Ottawa on October 30, 1975 in
which the infant plaintiff, then 15-1/2 months, while in the care and home of the defendant Monique
Couvillon, but temporarily without supervision, fell down an unguarded stairway and sustained serious injury
to her head.
The immediate result of the accident was that the infant plaintiff, Rachel, convulsed and became spastic in
her upper and lower limbs, with her eyes rolling. Unconscious, she suffered cardiorespiratory arrest which
was treated by a fireman by way of cardiopulmonary resuscitation and mouth-to-mouth breathing. That
emergency treatment continued as she was taken to the Montfort Hospital where a cut on her left ankle was
treated and where she was put on an intravenous dextrose solution and fitted with a nasotreacheal tube and
then transferred, still unconscious but breathing spontaneously, to the Children's Hospital of Eastern Ontario.
She remained in a coma for three days and was kept in the hospital until December 2, 1975.
 3

There is extensive medical evidence, the main burden of which is that Rachel suffered an injury which has
resulted in brain damage that will affect her both mentally and physically all of her life, the prognosis being
that, while she will be self-sufficient in the sense that with institutional support she will be physically and
mentally able to look after herself in her own dwelling, she will be confined, at best, to a limited range of low
paying jobs. Rachel's is a blighted life and her prolonged difficulties have brought disruption, suffering and
strain to the life of her single-parent mother, the plaintiff Vivian Lapensee.
By the date of the accident Mrs. Couvillon had been providing day care for Rachel, in Mrs. Couvillon's two-
storey townhouse home at 787 Borthwick Street, five days a week, for approximately two and one-half
months. Vivian Lapensee, who then lived nearby at 645 Borthwick, used to drop Rachel off with Mrs.
Couvillon on her way to work and used to pick her up after work. Mrs. Couvillon had been approved by the
defendant Ottawa Day Nursery Incorporated (the "Corporation") as a person competent to provide
supervised day care services in her own home, and when in August, 1975, Vivian Lapensee, whose
babysitter was leaving town, applied to the Corporation on an emergency basis for day care assistance the
Corporation sent her to Mrs. Couvillon. Under an agreement with the Regional Municipality of Ottawa-
Carleton the Corporation provided, through 'day care providers' such as Mrs. Couvillon, operating in their
own homes, day care services ("family day care") in the municipality. The Corporation was required by the
agreement to see that the services so provided were in compliance with the applicable provisions of the Day
Nurseries Act (now R.S.O. 1980, c. 111, as amended, then R.S.O. 1970, c. 104, as amended) and the
regulations thereunder and any requirement prescribed by the Director of the Day Nurseries Branch of the
Ministry of Community and Social Services (of Ontario). The Corporation, which was funded by provincial
and federal grants, administered a system of subsidized day care. At the material time Vivian Lapensee was
eligible for, and received the benefit of, a full subsidy. Mrs. Couvillon was paid by the Corporation for the day
care services she provided to Mrs. Lapensee in respect of Rachel and at the material times Mrs. Lapensee
did not have to pay any part of such costs. Mrs. Couvillon was free, up to a limit on the total number of
children in her care at any one time, to provide day care in her home to children not placed with her under
arrangements with the Corporation. In fact at the time of the accident she was looking after Rachel and two
other children one of whom was her own daughter, Nicole, and the other of whom was a fifteen month old,
Jason, that she cared for under a private arrangement with his parent or parents.
This action involves issues as to both liability and damages. The liability issues include not only questions
as to the appropriate standard of care but also questions as to the vicarious or other liability of the
Corporation and as to the applicability of the Public Authorities Protection Act, R.S.O. 1970, c. 374, with its
special limitation period.
Notwithstanding the submissions of Mr. Minard as to the applicable standard of care and the able and
forcefully presented submissions of Mr. Hewitt as to the standard of care, vicarious liability, the Public
Authorities Protection Act and compliance with statutory obligations, I am of the opinion that both Mrs.
Couvillon and the Corporation are liable to the plaintiffs.
Liability of Monique Couvillon - At the time of the accident Mrs. Couvillon was living with her husband and
their two children - Natalie, a month or so older than Rachel, and Maurice, approximately six years old - in a
rented two-storey, three bedroom, townhouse at 787 Borthwick Street in the Minto district of Ottawa.
Mrs. Couvillon had quit school when she was 16 or 17 and had worked as a waitress until she was
married at 21. After her marriage she did not have regular employment outside the home but supplemented
the family income by providing babysitting and day care services in her home. At the time of the accident she
was 24 or 25 years old and had been living at her Borthwick address for about five years.
When Mrs. Couvillon and her husband (since deceased) first moved in they put a child gate at the bottom
of the stairs between the first and second floors of the house, but they were required by a representative of
the landlord to remove it. At the time of the accident, and for at least three years preceding the accident,
there was no gate at either the top or the bottom of the stairs. It is not disputed that Mrs. Couvillon had
mentioned to Mrs. Lapensee that the landlord would not allow the installation of gates. Mrs. Couvillon could
not say whether or not her field worker from the Corporation was aware that the landlord had forbidden the
installation of gates. There is no evidence that before the accident the field worker, or anyone else from the
Corporation, had any conversations with Mrs. Couvillon on the subject of gates or other barricades to block
the top or bottom of the stairs when small children were in the house.
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On the morning of the accident Mrs. Couvillon had stomach cramps and did not feel well. She did not
mention this to Mrs. Lapensee when Rachel was being dropped off. Nor is there any evidence that she
reported her condition to the Corporation or that she or the Corporation had any back-up arrangements or
contingency plans in case she became ill. Mrs. Couvillon was suffering from diarrhea and it became apparent
to her, when the three children in her charge that day were playing in the kitchen, that she urgently needed to
go to the toilet on the second floor.
Concerned that the children could hurt themselves if left alone in the kitchen - particularly on the low
drawer under the oven of her stove - she scooped up all three children and took them upstairs to the
bedroom of her daughter Natalie where there were toys for them to play with. That bedroom was along a
hallway, around a corner and down a further short hallway from the top of stairs. The children were not put in
a playpen and the bedroom door was neither locked nor fully closed as, according to Mrs. Couvillon, Natalie
could have opened the door had it been closed. Mrs. Couvillon rushed on to the bathroom, which was near
the head of the stairs. She left the bathroom door partly open not so that she could see if the children
approached the staircase but so that she could hear them. Had the bathroom door been left fully open she
could have seen part of the staircase from her position in the bathroom but with the door only partly ajar, as it
was, she could see no part of the stairs.
There was no barricade at the top of the stairs. There was carpetting on the stairs and on the stair landing
where Rachel was found after the accident.
Mrs. Couvillon, from the bathroom, heard sounds of the children and stated at trial that she believed the
sounds to have been coming irom Natalie's room.
After a few moments Mrs. Couvillon heard a bump and then heard her little daughter cry. She left the
bathroom quickly to see what had happened and on getting to the head of the stairs she saw Rachel lying,
motionless, at the bottom of the flight of some thirteen steps leading down to a small landing. She ran down
and picked up Rachel whom she found to be unconscious. 8he tried mouth-to-mouth resuscitation and then,
taking Rachel and the other two children, she ran next door to her neighbour for help. The neighbour tried
mouth-to-mouth resuscitation and then called for emergency help, with the result that an ambulance came
and took Rachel to the Montfort Hospital. The police arrived after the ambulance had taken Rachel away.
Mrs. Couvillon then called Mrs. Lapensee at her place of work. According to undisputed evidence of Mrs.
Lapensee the call came to her around eleven o'clock in the morning.
Among the hospital records admitted in evidence is a Ministry of Health AS5A Ambulance Call Report with
respect to the pick-up of Rachel at Borthwick Street on October 30, 1975. The report notes that Rachel
showed an absence of vital signs and that an airway was inserted and that both ventilation assistance and
rhythmic thoracic compression was applied. When Mrs. Lapensee arrived by taxi at the neighbour's home it
was some considerable time after Rachel had been taken away in the ambulance. The absence of vital signs
in Rachel before she was taken away led Mrs. Couvillon and her neighbour to suggest to Mrs. Lapensee that
Rachel was probably dead.
Mrs. Couvillon was under instructions to report any problems to the Corporation. Although the accident
happened on a Thursday, Mrs. Couvillon did not report it to the Corporation until the following Monday. In the
seven years following the accident the Corporation sent no other children to be cared for by Mrs. Couvillon.
Mrs. Couvillon had first been approved by the Corporation as a home care provider in April, 1975. The
approval came in respect of Mrs. Couvillon's brother-in-law's infant child whom she had been looking after.
The brother-in-law could not afford to pay the full price of day care and he applied to the Corporation for a
subsidy. The Corporation could pay subsidies only for infants receiving care from an approved day care
provider. Mrs. Couvillon was investigated by the Corporation and encouraged to make an application for
approval. 8he applied and was approved and entered into a day care provider agreement with the
Corporation, which agreement was not tendered for admission at the trial. Mrs. Couvillon continued to
provide day care to the infant in question but with her brother-in-law receiving the benefit of a subsidy.
According to Mrs. Isobel Mackenzie, supervisor of Family Day Care for the Corporation in 1975 and at the
time of the trial, all the usual procedures were followed in connection with the approval of Mrs. Couvillon's
home. It is clear from parts read in at trial from the transcript of the examination for discovery of Charlotte
Birchard, then retired but previously for 14 years executive director of the Corporation, that it was not
uncommon for the Corporation to test a home where the child of an applicant for a day care subsidy was
 5

already receiving care, so that the child could be left in familiar surroundings and have the benefit of the
subsidy if the care giver's home qualified for approval. There was thus nothing unusual about the
circumstances under which Mrs. Couvillon's home was approved in April, 1975.
Rachel was the second child in respect of whom Mrs. Couvillon was recommended. The read-in portions
of Charlotte Birchard's discovery establish that the Corporation had a policy of trying to match the language
and socio-economic backgrounds of parents and care givers, so that the children would receive care similar
to that they would be receiving at home. Mrs. Couvillon was recommended on that basis for Rachel, and also
because her home was on the same street as Mrs. Lapensee's.
Five days a week Rachel received breakfast and lunch from Mrs. Couvillon. It was obvious at the trial that
Mrs. Lapensee and Mrs. Couvillon had got along well together during the two and one-half months that Mrs.
Couvillon looked after Rachel prior to the accident. Mrs. Lapensee described Mrs. Couvillon's house as clean
and well organized. Mrs. Couvillon had the impression that she was well thought of by Mrs. Montpetit, her
field supervisor or case worker from the Corporation. Mrs. Couvillon struck me as a caring and vigorous
person who would give good value and the same level of care to her day care charges as to her own
daughter of the same age. There is no question here of harshness or of recklessness. It is clear that Monique
Couvillon cared about the children in her charge. That, however, is not the issue in this part of the case.
The issue is what is the appropriate standard of care and whether on the morning in question Mrs.
Couvillon met that standard.
Mrs. Couvillon described Rachel as a quiet child, less advanced and less obviously happy than Mrs.
Couvillon's own daughter Natalie, of approximately the same age. Rachel had fewer words than Natalie, was
unsteady when she walked and was not toilet trained. She had only once gone near the bottom of the stairs
in Mrs. Couvillon's house and had never sought help in going up or down those stairs (as her mother said
she did at home).
After the birth of Rachel, Mrs. Lapensee took maternity leave of four months and looked after her.
Thereafter Rachel was cared for at the home of Mrs. Lapensee's mother-in-law for a time. Then Mrs.
Lapensee stayed for a time with her own mother and used to leave Rachel all day with a babysitter who lived
two doors away. There was evidence, including evidence of bruising, to suggest that some of the day care
previously received by Rachel was notably inferior to that provided by Mrs. Couvillon.
Mrs. Lapensee was familiar with Mrs. Couvillon's house and its staircase and had registered no
complaints about it. I mention this because it received considerable attention at trial, although I do not believe
much can turn on it. Single parents of low education and income who are in urgent need of day care and are
receiving it on a fully subsidized basis at the hands of someone who is positive and congenial are not likely to
voice criticisms even if they allow themselves to think of them.
As submitted by Mr. Addelman on behalf of the plaintiff and not contested by counsel for either defendant,
there can be no finding of contributory negligence on these facts. Nor was there any questioning of the
proposition that Mrs. Couvillon, as a paid child care giver, owed a duty of care to the infant Rachel committed
to her charge. The issues on this branch of the case are the appropriate standard of care and whether or not
it had been met. Counsel for each of the defendants submitted that the test was the standard of care that
would have been exhibited in the circumstances by a prudent and careiul parent. On behalf of the plaintiff it
was submitted that because Mrs. Couvillon was paid to care ior an infant child the standard of care required
of her was higher than that of a prudent and careful parent.
I am not persuaded that the fact of payment means that the 'prudent and careful parent' standard is not
appropriate and applicable. The care required varies with the circumstances and once the existence of a duty
of care is beyond question the result will be affected much more by the actual situation, by variations in the
circumstances and fact situations, than by differences in verbal formulations of the standard of care. The
prudent and careful parent standard is well established as the standard applicable to teachers and school
authorities and others having custody of children. See in this regard Moffat et al. v. Dufferin County Board of
Education et al. (1972), 31 D.L.R. (3d) 143 (Ont. C.A.) and Myers et al. v. Peel County Board of Education
(1981), 2 S.C.R. 21. In the earlier decision of the Supreme Court of Canada in McKay et al. v. The Board of
Govan School Unit No. 29 of Saskatchewan et al. (1968), S.C.R. 589, Ritchie J. had questioned whether that
test was appropriate where a single teacher was in charge of a larger number of pupils or students but he
 6

confirmed the test as appropriate where a teacher was in charge of a small group engaged in athletic
activities. If the test is applied to teachers and others in institutional settings where those in charge are
salaried persons doing what they are paid to do, I am unable to accept that the fact of payment of Mrs.
Couvillon means that some higher standard of care ought to be applied to her, when the function carried out
by her is virtually that of substituting for a parent's care.
The two areas of negligence alleged on behalf of the plaintiff are the failure to provide a child gate at the
top of the stairs and the inadequacy of supervision or substitutes for supervision in the brief period before the
accident took place.
The submissions with respect to the absence of a gate lead in my view to an over-emphasis on that
aspect of the case in the submissions of counsel for Mrs. Couvillon, with the discussion involving questions
of occupier's liability and whether a thing as common as an unguarded staircase could be considered to be a
particular hazard in the sense of an unusual danger. With respect, it is my opinion that the decision of my
brother R.E. Holland in Walker et al. v. Sheffield Bronze Powder Co. Ltd. (1977), 16 O.R. (2d) 101,
foreshadowed subsequent statutory changes of broader impact (Occupiers' Liability Act, R.S.O. 1980 c. 322)
by holding, based on numerous authorities referred to by him at pp. 106 and 107 that, at least where the
plaintiff is a child, the old categories of invitee and licensee and the element of allurement could be ignored
and the ordinary law of negligence could be applied. In my opinion subsequent developments have not
detracted from the correctness of that view.
I accept Mr. Minard's submissions that there must be more than a mere possibility of harm and that a
defendant is not called upon to give an absolute guarantee of the plaintiff's safety. However, I am completely
unable to accept his submission that for there to be liability it must be foreseeable that harm will probably
ensue. I believe the correct position to be set forth in the following excerpt from Fleming, The Law of Torts,
6th ed. (1983), at p. 109:

Commonly it is said that the risk must be "foreseeable". But how foreseeable? Clearly, the
chance of injury need not attain comparative probability; the test of "more probable than not"
we use to establish that a certain event has happened in the past, not whether it is fraught with
danger in the future. It is not even necessary that injury be "likely (or "not unlikely") to happen".
All that is required is that the risk be "real" in the sense that a reasonable person would not
"brush it aside as far-fetched" or fanciful.

[The emphasis is the author's; footnote references omitted]

I am also unable to accept Mr. Minard's submission that this is a case like Bolton v. Stone, [1951] A.C.
851, where the risk of harm or damage was so small that a reasonable person would have refrained from
taking special precautions to avoid it. In Bolton the plaintiff was injured when hit by a cricket ball knocked
right out of the field where the match was being played. The court found that the risk of such damage was so
little that persisting with matches played on a field surrounded by a built-up area did not amount to
negligence. In this case it simply cannot be said that the risk of harm was anything like so slight.
In submitting that Mrs. Couvillon met the standard of care applicable in the circumstances Mr. Minard
stressed the evidence tending to show that Rachel was a relatively inactive child who did not wander and
who had shown no interest in the stairs, that Rachel was left in a room distant from the head of the stairs,
that the children seemed to be playing quietly in Natalie's room, and also that regard should be had to the
standards in the local community to which Mrs. Lapensee and Mrs. Couvillon could properly be said to
belong. The last of these submissions was made with particular reference to the issue of the absence of a
gate at the head of the stairs. It was pointed out that the evidence shows that before the accident Mrs.
Lapensee had become thoroughly familiar with Mrs. Couvillon's house, having been upstairs many times and
having had the landlord's prohibition of the installation of gates explained to her.
The submission as to local standards was based upon a statement by Spence J. in his reasons for
judgment in Arnold et al. v. Teno et al. and others (1978), 2 S.C.R. 287, with regard to alleged contributory
negligence of the mother of a four-and-a-half year old child injured when re-crossing a street after being
permitted by the mother to go with her six year old sister to buy ice cream from an ice cream vending truck
parked across the street from the children's home. The statement is found at p. 313 and is as follows:
 7

The standard of care put on the mother is, I think, properly the standard of care of mothers in
the immediate community of the approach of this ice cream truck which was designed to attract
and actively operate so that even children of tender years were enticed to purchase its wares.
Yvonne Teno and the other mothers were entitled to rely on the vendor of the ice cream from
such a vehicle to exercise some care toward the children which it attracted. I, therefore, am of
the opinion that the appeal of Yvonne Teno should be allowed and that no contribution should
be assessed against her.
The Court of Appeal had held that the mother had fallen short of the standard to be expected from a
reasonably prudent mother in the circumstances and had reversed the trial judge on the point. The majority
decision of the Supreme Court of Canada is cited as authority for the proposition that there can be local
standards in a neighbourhood or group and that those standards can depart from the more general
standards of the society. I am not satisfied that that is a correct interpretation of this facet of the decision. It
appears to me that the judgment of Spence J. is better understood as turning on the circumstances of the
history of visits to a quiet residential street by ice cream vendors' trucks rather than turning on a different,
local or small community, standard of care.
Mr. Hewitt, counsel for the Corporation, also referred to Arnold v. Teno as authority for a special, local,
standard of care. Neither defence counsel asserted that there was contributory negligence on the facts of this
case. Mr. Hewitt quite explicitly acknowledged that there was no question of contributory knowledge. For him
Mrs. Lapensee's acceptance of the absence of a gate at the head of the stairs in Mrs. Couvillon's house was
evidence not of contributory negligence but of the standard of care found appropriate in the geographical
area and in the socio-economic subgroup to which both Mrs. Lapensee and Mrs. Couvillon belonged.
I have already stated my belief that a person in Mrs. Lapensee's position, with her urgent need not only for
day care but for day care on a subsidized basis, would be unlikely to feel free to make an issue about the
absence of a gate. This must diminish any probative force attaching to the fact that she did not complain and
must therefore diminish the extent to which her silence can be taken as evidence of a local standard of care.
The absence of a gate at the top of the stairs is less important, in and of itself, as it is as one of the factors
confronting Mrs. Couvillon in the emergency situation in which she found herself on the morning of October
30. The main issue is whether her supervision at that time met the required standard of care. The absence of
the gate complicated her situation but its real significance is that it greatly increased the risk, the foreseeable
risk of harm, to Rachel.
In submitting that Mrs. Couvillon met the required standard of care applicable in the circumstances, Mr.
Hewitt stressed the decision of the House of Lords in Carmarthenshire County Council v. Lewis, [1955] 1 All
E.R. 565. In that case a teacher at a combined nursery school, kindergarten and public school situate on a
main road in Wales had been about to take two four-year olds out for a walk from the nursery school when
she had to leave them, dressed for the outing, to fetch something and while away from them came across an
older child who was injured and unattended. Without calling for any help for her original charges, or speaking
to them, she tended to the injured child, with the result that she was away from the four-year olds for some
ten minutes. In the meantime one of the children wandered out of the building and to the busy street. The
child ran out into the street and into the path of an oncoming truck. The driver swerved to miss the child and
was killed when his vehicle hit a tree. The driver's widow sued the teacher and her employer, the County
Council. In the House of Lords, with one dissent, the County Council was held liable but the teacher was held
not to be liable. The majority reasoned that the teacher had behaved reasonably when confronted by the
emergency but that the authorities were negligent in not having in place in the school the staffing and
arrangements that would have prevented the teacher from being faced with the choice of which children to
ignore. As pointed out in the annotation there is nothing in the judgment denying that, judged by the test of
foreseeability, there had been a breach of duty towards the deceased in not preventing a child of about four
years of age being unattended in a busy street when he was in the care of the school authority. The
dissenting judge felt the case should stand or fall on whether or not the teacher was negligent.
The case is noteworthy because it exonerated the teacher while finding the employer liable. There are
some obvious parallels with this case, the most important being that in each case the person on the spot was
confronted with an emergency. In Carmarthenshire the teacher was held to have no third choice; she had to
 8

choose between the two four-year olds and the injured older child. Mrs. Couvillon did not face the same sort
of choice. However embarrassing further delay might have been, it did not amount to a choice between the
welfare of different children.
Mrs. Couvillon knew that she did not have a gate at the top of the stairs. Nor had she earlier devised any
other way of temporarily blocking the head of the stairs by pulling a heavy object across it. She knew the
staircase was unguarded. In the past, when having to have the children out of sight, she had placed them,
when downstairs, in a playpen which prevented them irom wandering. No rule of the landlord's would have
prevented her from having a playpen somewhere on the second floor of her house. She did not have one.
The fact that she had once had a gate on the stairs, at the top or at the bottom, reflects an awareness of the
problem.
At the time in question, If all else had failed she could have taken the children with her into the bathroom,
even putting them in the bathtub if there was no other room. She was thus not without effective recourse.
The risk was foreseeable and it was not remote or unlikely, and the danger was significant. The following
quotation by Laskin J. in the majority judgment in Dziwenka v. The Queen in Right of Alberta et al. (1971), 25
D.L.R. (3d) 12 at p. 22, is apt:

As was stated by Lord MacMillan in Read v. Lyons & Co. Ltd., [1947] A.C. 156 at p. 173, "the
law in all cases exacts a degree of care commensurate with the risk created".
The same point of law was reduced to its very essence in the reasons of Robins J.A. for the unanimous
Court of Appeal in Buchan v. Ortho Pharmaceutical (Canada) Limited (as yet unreported, released January
17, 1986), where his Lordship said at p. 32:
... the graver the danger, the higher the duty.
In the circumstances the conduct of this well-intentioned and good woman fell below the required standard
of care and amounted to negligence. She is therefore liable to Rachel and to Mrs. Lapensee in damages.
Liability of the Corporation
The liability of the Corporation involves consideration of three areas, namely: (i) whether the Corporation
is vicariously liable because of the negligence of Mrs. Couvillon; (ii) whether the Corporation is directly liable
for its own negligence; and (iii) whether any liability under (i) or (ii) is barred as a result of the special
limitation period in the Public Authorities Protection Act, R.S.O. 1980, c. 406.
Vicarious Liability
The Corporation is a non-profit corporation incorporated under the laws of Ontario and having as its main
undertaking the provision of day care services in the Ottawa area. It is managed by a board consisting wholly
or mainly of unpaid volunteers and its operations are carried out by and through a paid professional staff. At
all material times it operated the Andrew Fleck Child Centre at 195 or 185 George Street in Ottawa where
group day care services were provided for children who could not, for whatever reason, be cared for in their
own homes. Family support services were also provided to the families of such children. On an experimental
basis commencing in 1969 and on a regular basis since sometime in 1973 the Corporation also had a
program it called family day care under which children are cared for in private homes other than their own.
According to the uncontradicted evidence of Charlotte Birchard, a former executive director of the
Corporation or of its Andrew Fleck Child Centre, those homes were approved by the Corporation and
supervised by the Corporation on an ongoing basis. Both the group day care program and the supervised
home day care program of the Corporation were subject to the Day Nurseries Act, R.S.O. 1970, c. 104, as
amended, (the "Act"), and to regulations thereunder. The Corporation was required to be, and was, licensed
under the Act to operate its group day care program, but at the material times a licence was not required to
provide family day care services (i.e. day care services provided in the home of the care giver).
At all material times the Corporation programs were funded, (except to the small extent of fees paid by the
parents of some children), through a purchase of service agreement dated August 18, 1975 with the
Regional Municipality of Ottawa-Carleton (the "Agreement").
Under the Act, as amended at the material times, private-home day care was defined as follows:
 9

1.1(k)  "private-home day care" means the temporary care and custody for
reward or compensation of not more than five children under ten years of age in a
private residence other than the home of a parent or guardian of any such child,
for a continuous period not exceeding twenty-four hours;
and it was provided that:

1a.(1)  The council of a municipality may enter into an agreement with any
person or organization for the furnishing of private-home day care, and the
municipality may make such expenditures as are necessary for the purpose.
1)  The council of a municipality may pass by-laws granting aid to any person or
organization providing private-home day care.
After the Act was thus extended to deal with private-home day care the regulations under the Act were
amended and supplemented by O. Reg. 239/72, s. 4 of which, among other things, established a set of rules
applicable where a municipality agrees to subsidize the provision of private-home day care by persons or
organizations. Thus, by paras. 15d(2)(a) and (b), the building in which supervised private-home day care is to
be provided is liable to inspection by municipal officials and must conform to the various health and safety
by-laws in force in the municipality. Under para. 15d(2)(d), "the person or organization furnishing the
supervised private-home day care" is required to ensure compliance with several conditions. These
conditions include: restrictions on the number of children in the charge of a day care mother at one time;
reasonable access to the premises for the purpose of municipal inspections; the securing of medical
certificates as to the fitness of all persons caring for the children; and ensuring that an adult is present on the
premises at all times when supervised private-home day care is being provided. Clause l5d(2)(d)(vii) further
requires the person or organization providing supervised private-home day care to ensure that:

1vii)  the day-care mother in charge of the premises where the supervised
private-home day care is furnished has made application to provide supervised
private-home day care in Form 13, and

1a)  is sympathetic to the welfare of children,

1b)  has adequate knowledge of and experience in the methods of child
guidance suited to the ages of children eligible for enrolment, and
1c)  is suitable in respect of age, health and personality to occupy the
position,
It was pursuant to such provisions that the Corporation and the Regional Municipality entered into the
Agreement (which was for a term of one year and was probably not the first agreement of its type between
those parties). In the Agreement the Corporation is referred to as the "Organization". As one of the
submissions on behalf of the defendant Corporation was that it did not provide day care services but acted
as an approving agency and an intermediary between the day care mother and the child's parent or
guardian, it is noteworthy that the Agreement speaks of the Organization as "operating" private-home day
care and as "providing" such care. Thus, the recitals of the Agreement state as follows:
Whereas:

1.  The Organization operates private-home day care through Day Care
Providers for Children in the Municipality at 195 George Street, Ottawa.
1.  The Municipality has agreed to pay to the Organization the cost of providing
this care on the following terms and conditions.
[Emphasis added]
The Agreement is a document of three pages. The basic duties of the Organization (the Corporation) are
set forth in the lead-in language of para. 1 as follows:
 10

1.  The Organization shall provide private-home day care through Day Care Providers
in accordance with the requirements of the Day Nurseries Act ("the Act"), the Regulations made
under the Act ("the Regulations"), or any requirement prescribed by the Director of the Day
Nurseries Branch of the Ministry of Community and Social Services of Ontario, and shall enter
into such agreements with Day Care Providers as are necessary to ensure the provision of
private-home day care in the Municipality, and in particular, but without restricting the generallty
of the foregoing, shall ...
In consideration of the obligations of the Organization the Regional Municipality agrees to pay the
Organization for each child the difference between the agreed per diem rate for that child and the amount
determined by the Welfare Administrator of the Regional Muncipality as being payable per diem by the parent
or guardian of that child. The Agreement provides that the proofs of attendance by children at the premises of
their day care providers are conditions precedent to the payment obligations of the Regional Municipality.
The Agreement obligated the Corporation to enter into agreements with what it referred to as "Day Care
Providers" (being the persons in the category defined in the regulations as "day-care mothers") to ensure
compliance with the applicable regulations, by requiring the day care mothers to keep adequate records,
make the required reports, permit inspections, and grant access, and to ensure that there was a capable
adult in attendance at the premises of the day care mother while any child was receiving private home day
care.
The operative provisions of the Agreement repeat the language of the recital stating that under the
Agreement the Corporation "provides supervised private-home day care through Day Care Providers".
(Emphasis added).
In addition, the Corporation undertook to obtain approval from the Ministry and from the Regional
Municipality of all its "Home Visitors" and to ensure that the Home Visitors conducted an inspection of the
premises of the Day Care Provider at least once a month. There is no suggestion that any of these
requirements were not complied with. Indeed the evidence is to the effect that Home Visitors assigned to the
care of Mrs. Couvillon conducted inspections, or at least visited the home of Mrs. Couvillon much more
frequently than once a month.
The plaintiff, Mrs. Lapensee, heard about the Corporation, or more accurately about the Andrew Fleck
Child Centre, which she referred to as "the Fleck", from someone at her place of work at Canada Post. In
August of 1975, Mrs. Lapensee learned that the babysitter who had been looking after Rachel all day, five
days a week, while Mrs. Lapensee was at work was going to be leaving town very shortly. She applied to "the
Fleck" on very short notice and was sent by the Corporation to see Mrs. Couvillon toward the end of one
week. She was satisfied by Mrs. Couvillon that the latter would give Rachel good care and she so informed
the Corporation. On the following Monday she left Rachel with Mrs. Couvillon for the first time. It was not until
the following Wednesday that the Corporation's assigned case worker met with her and with Mrs. Couvillon
at Mrs. Couvillon's home to carry out the orientation procedures that would normally have preceded the
child's first stay at the day care mother's home. The departures from the Corporation's usual procedures
were made in order to cope with the urgent situation in which Mrs. Lapensee found herself. The paper work
caught up with the events shortly thereafter and things were operating on a regular basis long before the
date of the accident.
It is to be noted, however, that Mrs. Lapensee applied to the Corporation which put her in touch with Mrs.
Couvillon.
After Rachel was placed with Mrs. Couvillon her well-being there continued to be monitored on behalf of
the Corporation by the case worker, Mrs. Montpetit, who, according to Mrs. Couvillon, used to visit quite
often, sometimes more often than once in a week but always at least once every two weeks. Mrs. Couvillon
testified that she regarded Mrs. Montpetit (and later Mrs. Pinard when she replaced Mrs. Montpetit) as her
"boss".
Mrs. Couvillon was never paid by Mrs. Lapensee. She was paid by the Corporation on a per diem basis
for the days that she actually looked after Rachel in her home; and she was required, as a condition of
payment to complete and forward to the Corporation every two weeks a report about each child placed with
her by the Corporation. The last-mentioned reports were primarily concerned with the attendance record of
 11

the children sent to Mrs. Couvillon by the Corporation. When the Corporation sent her a cheque in payment
for past services it also sent along a new attendance reporting form. For monitoring matters other than in
respect of the attendance of the children the Corporation appeared to rely upon the visits of its home
visZtors, in this case Mrs. Montpetit and later Mrs. Pinard.
As stated above, subject to a restriction on the total number of children under her care at any time, Mrs.
Couvillon was free to have other children in her home for day care under private arrangements with their
parents. At the material time she had a little boy, Jason, in care under a private arrangement.
According to (Mrs.) Isobel MacKenzie, the Supervisor of Family Day Care for the Corporation, at the
material times, the purposes of visits by the Corporation's home visitors, apart from the recruiting of home
day care mothers and the assessment of persons who have applied for approval as such, is to see that the
applicable statutory requirements and the requirements of the Regional Municipality under the Agreement
are being met and to assess the functioning of the day care mother in relation to the children placed with her,
and to monitor the situation.
On behalf of the plaintiff it was submitted that the relationship between the Corporation and Mrs. Couvillon
was, quite simply, that of master and servant. On behalf of the Corporation it was submitted that the
Corporation was merely an intermediary in a statutory and municipal arrangement and that it had met without
fault all of its statutory and contractual duties and was not liable for the negligence, if any, of Mrs. Couvillon
because she was an independent contractor working out of her own house, not subject to control as to how
she performed her function and always free to enter into private arrangements for providing day care
services to other children.
The available parts of the testimony given by Charlotte Birchard provide some support for each of the
opposing submissions. On the side of the Corporation, Mrs. Birchard stated that where a day care provider is
being recommended to a mother by the Corporation the mother, the child and the Corporation's home visitor
will visit the home of the day care provider. In Mrs. Birchard's words (at Q. 47 of her discovery transcript):

The worker would go with the mother and child to the home so that everybody is satisfied. If
anyone is dissatisfied, the arrangement will not go through and some other home will be found.
On the other hand, the following question and answer are found at pp. 11 and 12 of that transcript:

1.  What type of authority does the worker have to correct problems in the home if
problems are seen in terms of safety features, or to simply take the child out of the home and
place her or him somewhere else?
1.  Those are two different questions. I don't think she has any authority, but she has a
good deal of responsibility in terms of correcting or advising in relation to what may be
happening to the child in the home. As far as authority is concerned, you have to remember
that these children are still in their own home. This is not a foster home like the Children's Aid
Society. It is a home where the child is there only by the day. If we thought the child should be
removed, this is something we would be in consultation with the mother about. If we felt
strongly about the care of the child in the home, we could refuse to keep the child there even if
the mother resisted. We would not pay the care giver if we felt she was giving inadequate care.
when you talk a out removal from the home, that is what I get anxious about because in terms
of authority, that is not the basis on which we are operating.
[Emphasis added]
Much of the disclaimer element in the foregoing has to do with the fact that the children with which the
Corporation is concerned where family day care is involved are children in the primary custody of their
parents or parent or guardian, with the result that the wishes of the Corporation are not determinative of what
will be done with the child, because the parents, parent or guardian have an important voice. That, however,
is not the issue. We are concerned here not with ultimate determinations of what will happen to particular
children but with the amount and kinds of control exercisable by the Corporation in relation to the day care
mother, or day care provider, such as Mrs. Couvillon. I accept as true and correct the statement of Charlotte
Birchard, in answer to Question 47 on her examination for discovery (found at p. 10 of the transcript), where
 12

she said (usually) a mother "would like to go into our program and receive subsidy or she would like to come
into the program because of the ongoing supervision". With regard to the enquiry into control the importance
of the answer set out in the above quotation is that it is a clear statement that where the Corporation feels
strongly about the care being given by a day care mother it can cut off the subsidy. By extension, the
Corporation can do the same if it disapproves of any practice being followed by the day care mother and the
latter refuses to change the practice. If the Corporation can stop paying the day care mother it can also, and
presumably would at the same time, withdraw its approval and its supervision. Thus the Corporation can
withdraw both the reasons that usually impel mothers to seek day care supervised by it. On the evidence I
cannot accept the submission that the Corporation functions merely as an intermediary or broker whose
function is to assess, and where appropriate approve, day care givers and then match them appropriately
with parents needing family day care services.
The following are facts which appear to me to be important to the determination of whether the
Corporation is liable to the plaintiffs in respect of the negligence of Mrs. Couvillon:

2.  The Corporation agreed in the Agreement to provide home day care in accordance
with the Act and the regulations.
1.  The Corporation has the power to approve or not approve a home and a person as a
day care mother, thus making the day care given in such home by such person eligible for
subsidy where the child's parents, parent or guardian can show need.
1.  Day care givers providing approved day care are regularly monitored by the
Corporation and are required to report regularly as to attendance.
1.  Day care givers are paid fixed rates and so are not in a position to reap anything like
an entrepreneurial profit.
1.  As stated, through its power to withdraw its approval the Corporation can in effect
cut off the subsidy going to the parent(s) or guardian in respect of the day care provided by a
particular day care giver, and this is also as controlling as the power to dismiss from
employment.
1.  Although supervision is not constant, the right to monitor performance, and to
inspect, coupled with the power, in effect, to withdraw the subsidy payments in respect of a
particular day care giver affords the Corporation a significant measure of control over how the
day care services are provided, as well as the more obvious, and undenied, control over where
and when, and by whom, they are provided.
1.  As day care giver, Mrs. Couvillon had a significant element of control over the
manner in which the details of her care were carried out, subject to the advice, monitoring and
inspections of the Corporation's, home visitor.
1.  Mrs. Couvillon was free, subject to a general limitation on total numbers, to enter
into private arrangements with the parents of other children.
It is urged, on behalf of the Corporation, that Mrs. Couvillon was not a servant but an independent
contractor; that she was not a person hired under a contract of service but a person retained under a contract
for services, the latter being a more modern way of wording what is essentially the same distinction.
The classic nineteenth century test for the master and servant relationship was the "control" test, and
although the increasing technical complexity of modern industry and commerce, and other modern forms of
organization make that test increasingly difficult to apply, at remains the starting place for enquiries such as
this; and it is sufficient to dispose of many cases. However, the control test is increasingly supplemented, or
supplanted, by other considerations, one of which has been dubbed the "organizational test".
In Armstrong v. Mac's Milk et al (1975), 7 O.R. (2d) 478, at p. 481, R.E. Holland J. of this Court stated the
following:

The conventional test for distinguishing a servant from an independent contractor is the
"control" test. MacKinnon, L.J., in Hewitt v. Bonvin et al., [1940] 1 K.B. 188 at p. 191, said:
 13

I think the definition of a servant in Salmond on Torts can hardly be bettered: "A
servant may be defined as any person employed by another to do work for him on
the terms that he, the servant, is to be subject to the control and directions of his
employer in respect of the manner in which his work is to be done."

As pointed out in Fleming, Law of Torts, 4th ed. (1971), at p. 316, changess in the structure
of modern business have made it increasingly difficult to apply the control test as a meaningful
working rule to many situations characteristic of modern conditions. Another test that has been
applied is the "organization" test. Lord Denning, in Stevenson Jordan and Harrison, Ltd. v.
Macdonald and Evans, [1952] 1 T.L.R. 101 at p. 111, said:

It is often easy to recognize a contract of service when you see it, but
difficult to say wherein the difference lies. A ship's master, a chauffeur, and a
reporter on the staff of a newspaper are all employed under a contract of service;
but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a
contract for services. One feature which seems to run through the instances is
that, under a contract of service, a man is employed as part of the business, and
his work is done as an integral part of the business; whereas, under a contract for
services, his work, although done for the business, is not integrated into it but is
only accessory to it.
In Armstrong, R.E. Holland J. found that on the facts there was vicarious liability on the basis of either or both
of the control test or the organization test. Earlier, in the judgment of Spence J. for the majority of the
Supreme Court of Canada in Co-operators Insurance Association v. Kearney, [1965] S.C.R. 105 at p. 112,
the organizational test, as described in Fleming, The Law of Torts, 2nd ed. at p. 328, was expressly adopted
and applied. The statement quoted from that edition of Fleming by Spence J. was as follows:
Under the pressure of novel situations, the courts have become increasingly aware of the strain on the
traditional formulation [of the control test], and most recent cases display a discernible tendency to replace it
by something like an 'organization' test. Was the alleged servant part of his employer's organization? Was his
work subject to co-ordinational control as to 'where' and 'when' rather than 'how', [citing Lord Denning in
Stevenson, Jordon & Harrison Ltd. v. Macdonald, [1952] 1 T.L.R. 101 at 111.]
[Words in parentheses added]
Increasingly there has been, especially in cases where the putative employee is a highly skilled professional
and the putative employer does not have the skill or knowledge to give him detailed instructions with respect
to the manner in which he carries out his work, an emphasis not on actual supervision of detail but on
ultimate authority. In this regard see Fleming, The Law of Torts, 6th ed. (1983), pp. 342 and 343.
In my opinion the Corporation is vicariously liable on the facts stated above for the negligence of Mrs.
Couvillon. There is ultimate control, co-ordinational control, in the Corporation. The fact that Mrs. Couvillon
was free, within limits, to provide services to others, does not mean that vis-a-vis the Corporation she was an
independent contractor: Market Investigations Ltd. v. Minister of Social Security, [1968] 2 Q.B. 173.
The Corporation's undertaking involved two main activities, the provision of group day care and the
provision of family day care. The services of Mrs. Couvillon were integral, and not merely accessory, to latter.
Upon the application of either the modern version of the control test or the variation thereof known as the
organizational test the Corporation is, in my opinion, vicariously liable.
There is a further reason for holding the Corporation vicariously liable for the negligence of Mrs. Couvillon,
and that is that the Corporation is in a far better position than she to make provision for the fact that some
accidents are virtually inevitable in that line of work, to devise and implement practices calculated to reduce
the risk of accidents and to distribute the risk. The fact that the Corporation happens to be a non-profit
organization must not be allowed to disguise the fact that it is in the entrepreneurial position in the sense that
it sets the activity in motion.
 14

In finding the Corporation vicariously liable am rejecting the submissions on its behalf to the effect that the
Act and the regulations thereunder set forth all of the duties of the Corporation, and that the Corporation has
not failed to duly and properly carry out all of its statutory duties. Leaving aside the second branch of that
submission and dealing only with the first branch, I am of the opinion that the Act and the regulations do not
comprise or set forth all the duties and obligations of the Corporation with respect to family day care. They
may be the only obligations ior the breach of which the Corporation is subject to punishment, or cancellation
of its licence, under the Act. I express no opinion on that. However, those duties and obligations do not
constitute the sum total of the obligations and potential liability of the Corporation in tort once it commences
to operate a iamily day care program through day care providers operating in their own homes.
Direct Liability of the Corporation
The plaintiffs also pleaded that the defendant Corporation was also liable to them not vicariously but
directly, for not ensuring that the home of Mrs. Couvillon was iree from hazards and obvious dangers to
infants and toddlers, and for not taking steps to determine whether Mrs. Couvillon was a competent person
capable of caring ior young children.
The second of those allegations need not detain us. Although I have found that Mrs. Couvillon fell below
the required standard of care in the situation in which she found herself on the morning of the accident, there
was no evidence to suggest that generally speaking she was not a competent person, who gave good day
care. Mrs. Lapensee herself appears to have been pleased with the care given to Rachel. Mrs. Couvillon's
appearance and manner in the witness box and her evidence as to the way she used to care for her charges
combine to negative the suggestion that the Corporation was negligent in that it hired a person incompetent
to provide family day care services.
The first branch of the allegation gives me more pause. It involves the assertion that to place toddlers in a
two-storey home with an open staircase when it is known that there will usually be only one care giver in the
home is itself negligence on the part of the Corporation or on the part of employees for whom the
Corporation is clearly vicariously liable, where the Corporation or its servants did not require that there be
gates at the top and bottom of the stairs, or other means of protecting toddlers like Rachel from the perils of
an open staircase.
There is no evidence that Mrs. Montpetit or any other servant of the Corporation had warned Mrs.
Couvillon about the danger of an open staircase or had required Mrs. Couvillon to devise and implement a
way of blocking the head of the stairs or otherwise securing the children when they were on the second floor,
for example, by insisting that Mrs. Couvillon provide a playpen on the second floor for use when children had
to be left upstairs unattended.
Even if the Corporation could not afford to provide child gates or playpens the question remains as to
whether the Corporation should have required them, or one of them, as a condition of approving Mrs.
Couvillon's home for supervised family day care.
Mrs. Couvillon's uncontradicted evidence was that she could recall no conversation with Mrs. Montpetit or
anyone else from the Corporation about the absence of or need for a child gate at the head of the stairs.
Neither the Act nor the regulation thereunder has any specific provision dealing with the subject but, as
stated above, it is my opinion that that does not settle the question.
In my opinion, although with the benefit of hindsight it can be seen that insistence upon a gate or a
substitute therefor, or insistence upon a second floor playpen, or the giving of more instructions to Mrs.
Couvillon as to the hazards of the stairs, would have been helpful and might have led to the avoidance of the
accident, it has not been established that the conduct of the Corporation in this regard amounted to
actionable negligence.
Public Authorities Protection Act
The defendant Corporation pleaded that the action against it was barred by s. 11 of the Public Authorities
Protection Act, R.S.O. 1970, c. 374, as amended, which section is identical with R.S.O. 1980, c. 406, s. 11,
and states as follows:
 15

1.  No action, prosecution or other proceeding lies or shall be instituted against any
person for an act done in pursuance or execution or intended execution of any statutory or
other public duty or authority, or in respect of any alleged neglect or default in the execution of
any such duty or authority, unless it is commenced within six months next after the act, neglect
or default complained of, or, in case of continuance of injury or damage, within six months after
the ceasing thereof.
The plaintiff's action was commenced more than six months after the act or neglect complained of.
It was acknowledged by counsel for the Corporation that his submissions in this regard were predicated
upon there being a finding that there was no liability on the Corporation where there was no breach of, or
non-compliance with, the Act (Day Nurseries Act) or the regulations thereunder. As stated above, I do not
accept the proposition that the Act and the regulations constitute a complete code in the sense that the
Corporation will have no liability unless it is shown to have contravened their provisions. I have held that Mrs.
Couvillon was negligent on the morning of October 30, 1975 and that the Corporation is vicariously liable in
respect of such negligence. Those conclusions involve findings of negligence entailing liability outside of, or
apart from, the provisions of the Act and the regulations thereunder, and so it is conceded that claims in
respect thereof are not barred by the Public Authorities Protection Act.
I have found that the Corporation was not negligent in its selection or supervision of Mrs. Couvillon or in
not insisting that there be a child gate or substitute restraining device installed or available to block the head
of the stairs. In effect, I have held that the only liability of the Corporation is its vicarious liability for the
damage caused by the negligence of Mrs. Couvillon, which negligence does not arise by virtue of a
contravention of a provision of the Act or the regulation thereunder. In case I am in error with respect to
whether there is direct liability of the Corporation or with respect to whether the negligence of Mrs. Couvillon
arose from contravention of the Act or regulation, I should comment further upon the Public Authorities
Protection Act.
I note that it was decided in Moffat et al. v. Dufferin County Board of Education et al. (1973), 31 D.L.R. (3d)
143, that both a public authority and its servant have a right to the protection of the six month limitation
period under s. 11 of the last-mentioned statute, and that a servant's negligence in the performance of a
statutory duty does not categorically put him beyond the protection of s. 11.
The Corporation is not, as was Ontario Housing Corporation in Berardinelli v. Ontario Housing Corporation
(1978), 90 D.L.R. (3d) 481, (S.C.C.), a Crown agency, but I note that at p. 493, Estey J. left open the
question of whether s. 11 would apply in respect of a corporation that was not a Crown agency, although
expressing the tentative and acknowledgedly obiter view that it would. In Berardinelli the main issue was
whether certain activities of an acknowledged public authority were carried out in pursuance of a public duty
or in the exercise of a public authority, or instead were duties incidental to the authority's main function but
themselves without the public connotation that would bring the special limitation period of s. 11 into play. In
this case there is a prior question as to whether any of the activities of the Corporation are done in pursuance
or execution or intended execution of a statutory or other public duty or authority.
The Day Nurseries Act empowers a municipality to enter into an agreement with any person or
organization for the purpose of furnishing private-home day care, and to make expenditures for that purpose.
The Act does not obligate a municipality to provide such services, to enter into such agreements or to make
such expenditures. Nor does the Act require the Corporation to undertake the provision of private-home day
care. Although a licence was not at the material times required in respect of private-home day care, the basic
pattern of the Act, established in respect of its original field of application, which was group day care in an
institutional setting, was that of a licensing statute. The thrust of the Act with respect to group day care is to
provide that no one may carry on that activity without a licence and then to provide that licensees must
comply with the Act and the regulations. Although no licence was required with respect to private-home day
care at the material time the legislative pattern remains one of providing that if a municipality provides such
day care through an organization specified requirements and restrictions are to apply.
Even if the Agreement were construed to make the Corporation an agent of the Regional Muncipality there
would still be no statutory duty imposed upon the Corporation since the Regional Municipality itself did not
have such a duty.
 16

In my opinion the provisions of subdivision 15d(2)(d)(vii) of Regulation 239 under the Act (R.R.O. 1972,
Reg. 239) requiring the Corporation to ensure that Mrs. Couvillon, among other things, was sympathetic to
children had adequate knowledge and experience in methods of child guidances are more in the nature of
regulatory controls imposed upon a private entity rather than a statutory duty or authority attracting the
special protection of s. 11 of the Public Authorities Act.
In the majority decision in Berardinelli in the Supreme Court of Canada, Estey J., at p. 492 (D.L.R.), made
the following general statement with respect to the way s. 11 of the Public Authorities Act ought to be
interpreted:

Section 11, being a restrictive provision wherein the rights of action of the citizen are
necessarily circumscribed by its terms, attracts a strict interpretation and any ambiguity found
upon the application of the proper principles of statutory interpretation should be resolved in
favour of the person whose right of action is being truncated.
On the same page his Lordship noted that the application of the six-month limitation period of s. 11 to claims
arising from an accident allegedly caused by negligent failure to remove ice and snow from the entranceway
to housing units,

would have the direct result of producing two categories of housing units in the community:
the one operated by persons having a statu- tory mandate to which a six-month limitation
period would extend; and the other operated by a person without statutory authority to which
the general limitation period would apply. Of course both housing projects would appear
identical in fact to the attending public whose rights are directly affected by the distinction.
A similar difficulty would arise if there were a limitation period of six months in respect of Rachel's injury,
because she had been placed with Mrs. Couvillon by the Corporation, and a limitation period of six years in
respect of an action brought in respect of injuries to another child who happened to be receiving care from
Mrs. Couvillon under private arrangements with its parents.
It is provided by s. 15 of the Public Authorities Protection Act that: "This Act does not apply to a municipal
corporation." Where, and to the extent that, the obligations of the Corporation arise not as direct statutory
duties of the Corporation but as a result of the Agreement it would be anomalous if they were to attract the
special limitation period of s. 11.
In my opinion, even if the Corporation were to be held to have been negligent, directly and not only by way
of vicarious liability, and even if that negligence consisted of, or involved, non-compliance with a specific
requirement of the Act or the regulations thereunder, the special limitation period of s. 11 of the Public
Authorities Protection Act would not be applicable, because the duties there in question would not be
statutory or other public duties but obligations of a regulatory nature to which the Corporation would have
become subject by virtue of voluntarily entering into an agreement with the Regional Municipality.
History, Medical Evidence and Prognosis with respect to Rachel
Although Mrs. Couvillon found Rachel to be, in the two months or so before the accident, a quiet child who
was not as advanced in speech, walking or toilet training as Mrs. Couvillon's daughter Natalie had been at
the same age, the burden of the evidence, from Mrs. Lapensee and from Dr. David Doyle, F.R.C.P.(C), the
only physician to testify at the trial, was that Rachel was born after a normal and uneventful pregnancy and
delivery and that at ten months she. was walking and, quite normally, had a vocabulary of two or three words.
I find that Rachel was a normal and healthy infant before the accident. There is nothing to suggest that
before the accident her intelligence was anything other than normal and average.
Dr. David Doyle, the only medical witness, is eminently qualified to give expert evidence with respect to
the injuries sustained by Rachel and the effect they have had and will continue to have upon her
development and prospects. At the time of the trial he was both the Director of the Child Development
Service of the Children's Hospital of Eastern Ontario and Assistant Medical Director of the Ottawa Crippled
Children's Treatment Centre. After attaining a degree in science from St. Francis Xavier University in 1965
and a medical degree from the University of Toronto in 1969, Dr. Doyle took internship training at St.
 17

Michael's Hospital in Toronto and residency training at the Hospital for Sick Children in Toronto, after which
he was awarded a post residency fellowship by the Ontario Department of Health to study child development
for two years at Johns Hopkins University Hospital in Baltimore. In 1975 he won his F.R.C.P.(C). His primary
specialties are pediatrics, mental retardation and developmental pediatrics. At the time of the trial he was a
lecturer in the Department of Pediatrics at the University of Ottawa and belonged to seven medical societies,
three of which reflected his emphasis on developmental pediatrics. With the consent of counsel for the
defendants four reports of R.L. Trites, Ph.D., of the Neuropsychology Laboratory of the Royal Ottawa
Hospital, with respect to neuropsychological tests of Rachel in March, 1976, on August 24, 1977, January 4,
1979 and July 15 and August 19, 1980, were introduced through Dr. Doyle and admitted as exhibits 6, 7, 8
and 9. Dr. Doyle also commented upon other medical reports (exhibit 2) and upon reports done by the
Screening Clinic of the Ottawa Crippled Children's Treatment Centre (exhibit 4) two of the three of which
were reports by himself.
I shall also make findings in this section based upon the evidence of an expert teacher and upon evidence
of Mrs. Lapensee as to practical implications of Rachel's condition and capabilities at different times.
Rachel was unconscious for three days after her transfer to the Children's Hospital for Eastern Ontario
where she was in intensive care for seven days before being transferred to a ward. While in intensive care
she had her second seizure, of the type said by Dr. Doyle to have been caused by discharges from her
injured brain. Her tendency to seizures or convulsions was treated with the drug Dilantin, and such treatment
was continued for several years. X-rays taken in this period disclose that there was no fracture of the skull.
Rachel remained in hospital until December 2, 1975, and during that six-week period began to take food so
that intravenous feeding could be discontinued, and she started to recover some use of her neck.
During the period that Rachel was in the hospital Mrs. Lapensee saw her every day, taking time off work to
do so. According to Mrs. Lapensee, Rachel was "a complete vegetable - everything on her was like Jello".
There was no mental contact with the mother: Rachel "wouldn't know who I was" and she had no movements
"except twitchings". Even as she lay still Rachel's head would not stay in place. After Rachel left the hospital
Mrs. Lapensee, or others, would feed her mushed food through a squeezeable bottle on which the nipple had
an oversized hole. According to Mrs. Lapensee, improvements started to be apparent only some seven or
eight months after the accident.
A report of Q. Ghanem, M.D., F.R.C.P.(C) of the Children's Hospital for Eastern Ontario with respect to an
EEG test on March 11, 1976, noted a dramatic improvement in driving response since a similar test on
November 10, 1975.
Rachel was referred to the last-mentioned hospital by her pediatrician, Dr. Peter Morrice, and was first
seen there by Dr. Doyle on May 10, 1976. In a report dated August 5, 1976, in which he reviewed briefly the
course of Rachel's treatment, Dr. Morrice stated:

At the age of 18 months (Jan. 30, 1976), 3 months after her injury, there was no evidence on
examination that she could sit, let alone walk. The only motor activity, in addition to arm and leg
movements, was her ability to roll. She had poor head control and would not pull to a standing
position. Her upper limbs were mildly spastic and her lower limbs appeared more so. Aside
from neurological examination, there was little else of a positive nature. It appeared that her
head injury had caused considerable neurological damage and had set her back in her motor,
and probably intellectual development.
In his first report, from the Screening Clinic of the Ottawa Crippled Children's Treatment Centre, on May
10, 1976 when Rachel was 22 months old, Dr. Doyle found developmental difficulties both mental and
physical, and noted that after the accident Rachel had lost almost all her acquired skills and had had to re-
learn them. Despite notable recent progress Dr. Doyle found that Rachel had a marked preference for her
right hand, an expressive vocabulary of only three or four words but a longer comprehension vocabulary. Dr.
Doyle referred to an evaluation done in March, 1976 by R.L. Trites Ph.D., with respect to which the latter had
reported that (when some 20 months old) Rachel had been operating at about the 11.2 month level on the
Cattell Infant Intelligence Scale, with a full scale I.Q. of 56, and that the Vinland Social Maternity Scale,
concerned with social and self help skills, yielded a Social Quotient of 49. Dr. Doyle, viewing her about two
months later, was considerably more optimistic, being of the opinion that at 22 months Rachel was
 18

functioning at about the 16 to 18 month level. In this period Rachel received extensive assistance from
physiotherapists, occupational therapists and speech therapists.
Dr. Doyle next saw Rachel in January, 1977, when she was approximately two and one-half years old, and
he found her essentially healthy but with no major changes in her development in the intervening six months.
Although her vocabulary was up to twenty words and she could point to objects mentioned by others, she
used no short phrases, her motor skills lagged six months behind the normal range and her understanding
was at the 18 month level. Her balance had improved and she had started to crawl but for the first time she
was obviously suffering ataxia, the non-coordination of large muscles that was to be a continuing affliction.
Dr. Doyle expressed the opinion at that time that Rachel's development difficulties and her heightened
muscle tone were clear evidence of obvious brain damage. There was nothing at the trial or in the filed
medical reports to suggest that this view was not correct. At age two and one-half Rachel was enrolled in the
Centre's half-day program of daily therapy. Mrs. Lapensee testified that this program was very good for the
child.
At June 30, 1977, when Rachel was two years and 11 months old, Dr. Doyle found that she could take a
few steps and could undress herself but was not toilet trained, still had heightened muscle tone and had
become seriously ataxic which made her clumsy and uncoordinated. Therapy continued and Dr. Doyle
continued to follow the case at six-month intervals.
According to Dr. Doyle, when Rachel was three years and four months old she had fine motor skills in a
two year old's range. In the opinion of Dr. Doyle this was the time by which a significant breakthrough should
have been manifest, if one was coming. The second series of tests by Dr. Trites confirmed Dr. Doyle's view:
Rachel at three years and one month was found to have passed all the tests for two year olds and to have
failed all the tests for three year olds. On the Peabody test she scored as would a normal child aged two
years and one month.
When Rachel was three years and eight months old her skills were approaching normal three year old
levels but she was still ataxic and still exhibiting balance problems. At her pre-school classes her attention
span was notably short. In May, 1978, when Rachel was three years and ten months old her medical
advisers decided she was not ready for kindergarten but needed another year in specialized pre-school with
a heavy emphasis on therapy. In November, 1978, Rachel was still at a pre-school level making progress but
lagging behind age norms.
When tested by Dr. Trites in January, 1979, at age four years and four months, a Peabody Picture
Vocabulary Test (a receptive vocabulary test) yielded a mental age score of three years and two months
which, Dr. Trites reported, corresponds to an I.Q. score of 75. The tests continued to reveal cognitive, motor
and sensory impairment. Moreover, behaviour tests and ratings reflected increasing behaviour adjustment
problems involving restlessness, impulsiveness, manipulativeness and being excessively demanding.
At six years and one month old, in September, 1980, Rachel had continued to show gains but remained
ataxic, unsteady on her feet and academically well behind her age group. Dr. Trites' fourth and final report
with respect to tests in July and August, 1980, shows Rachel as manipulative and difficult to manage, with
verbal skills in the range of 70 (out of 100) and a full-scale Wechsler I.Q. rating of 66. Dr. Trites found Rachel
to be in the mild range of mental retardation, with continual developmental delays. More importantly, Dr.
Trites found that Rachel's recovery of developmental skills had reached a plateau and that her impaired
condition was relatively stable. At trial Dr. Doyle was in agreement with this opinion and emphasized that
Rachel will remain behind normal levels of development - with the gap widening as time passes.
As there was no contrary evidence and as the opinions were manifestly based upon careful testing and
long-term observations, and were supported by evidence from the mother and a specialist school teacher, I
find Rachel's condition to be as summarized above from the evidence and reports of Dr. Doyle and Dr. Trites.
According to Dr. Doyle, behaviourial complications are not at all unusual where there are persistent
neurological problems.
In October, 1980, Rachel, six years and three months old, went to a regular public school, entering a five-
year olds Kindergarten class, and it turned out that she could not cope at that level. For the next year Dr.
Doyle and his colleagues recommended a special class in a regular school, a class with small numbers and
a great deal of personal attention. In November, 1981, according to Dr. Doyle, Rachel's anti-convulsive
 19

medication was discontinued and she was in a 'slow learner' class at a public school, physically well but with
the same neurological problems, reflected in ataxia, clumsiness and the fact that she was a danger to herself
physically.
At trial the Court also had the benefit of evidence from Miss C. Delion, a teacher with twenty years
experience and with recognized qualifications in special education for young children. Miss Delion taught
Rachel from September, 1981 until June, 1982 (when Rachel was almost seven years old) in a special,
ungraded, class limited to twelve pupils ranging in age between six and ten years and all having learning
problems. That class was roughly comparable to a Grade 1 level. I accept the testimony of Miss Delion that
Rachel had a short attention span, poor hand-eye coordination, needed an aide with her because she could
not handle the stairs, and often fell out of chairs because her balance was so poor. I also find that Rachel got
only one-third of the way through the simplified reading program for that year.
Miss Delion found Rachel eager to learn and a pleasure to work with (in contrast to some of the evidence
of behaviour problems) and noted that Rachel had learned to express herself on simple matters in complete
sentences. Miss Delion stated, without contradiction, that Rachel would be at the same basic level in the
ensuing academic year, and that arrangements were made to move her to a special opportunity class at
Hilton Public School in the west end of Ottawa, where the required facilities were all on the same floor and
Rachel could avoid the problems and hazards of stairs.
On cross-examination by Mr. Hewitt, Dr. Doyle acknowledged that although administration of the anti-
convulsive drug, Dilantin, was continued for several years Rachel had only two reported seizures, one at the
time of the accident and one in the hospital shortly thereafter. Dr. Doyle also acknowledged that the brain
injury was a diffuse rather than a focal or focused type of injury and that in 1976 there was a three-month
period in which Rachel recovered from five to six months' worth of her lost developmental skills and that at
six years old she was lagging by only about one year. However, those acknowledgements do not significantly
change either the prognosis given by Dr. Doyle or the picture that emerges from all of the evidence.
Dr. Doyle's prognosis is, at the least, supported by Dr. Trites (whose own findings seemed more
pessimistic), was not contradicted by any medical evidence and was in my view amply justified by the
detailed observations made and expressed by him. The important elements of that prognosis are as follows:

3.  At the physical level Rachel's balance problems and ataxia will be of long standing.
2.  Her clumsiness will also be of long standing and will be worse when she is tired or
stressed.
2.  In terms of education, (i) her combined developmental problems and mental
impairment will mean that she will always need to be in special classes where she receives
extra attention and help; (ii) she has been lagging even while receiving excellent special help;
(iii) she does not have the mental capabilities to handle an academic program, even at the
public school level; and (iv) will probably be able to handle some vocational training but it is
difficult to say how high she can climb along that path and for what sort of employment she
would be qualified.
2.  That the skills available to her are likely to confine her to the sorts of jobs where the
pay is at the level of the statutory minimum wage.
2.  That her balance problems will keep her out of many social activities such as
dancing and sports and will tend to inhibit all initiatives and activities based upon a sense of
mobility and personal freedom or ease of physical movement.
2.  That the time for a developmental recovery breakthrough is passed, and the gap
between Rachel's development and normal development will continue to widen.
2.  That the behaviourial problems already manifested, in the sense of Rachel being a
demanding and manipulative child, are likely to persist and to be exacerbated as she ceases to
be a child and becomes a teenager.
2.  That in terms of future living arrangements it is likely that Rachel will not require to
be institutionalized but will be able to be self-sufficient, in the sense of being able to fend for
herself in her own separate dwelling within special limits, such as institutional supports in the
form of counselling.
 20

In so far as items 1 through 8 above are matters of fact I make specific findings in accordance with them
and in so far as they involve elements of prediction I find the predictions to be reasonable and probable on
the balance of probabilities.
The expert evidence as to Rachel's future capabilities was confined to the question of whether she would
be likely to require institutional care or whether she could be expected as an adult to be able to live in her
own dwelling unit, self-sufficient as to household and daily living tasks. There was no evidence, expert or
otherwise, expressly directed to the question of Rachel's future employability, except the evidence of Dr.
Doyle, which I accept, that she is not likely to be able to handle any job that is remunerated at a rate above
the minimum wage. I understand Dr. Doyle to be focusing primarily upon educational possibilities and
intellectual capacities when he expressed that opinion. There is also the whole question of physical capacity.
Rachel is ataxic, tends to walk on her toes, has poor balance and becomes increasingly clumsy when tired.
The uncontested evidence is that such troubles will endure. Thus, physical disabilities can be expected to
narrow further the already narrowed range of jobs available to someone with few educational attainments
and persisting developmental deficits. Rachel will attain the age of eighteen years in 1992. I take judicial
notice of the fact that across Canada high levels of unemployment have been experienced for several years,
with particular acuteness among youthful would-be employees. I also take notice of the fact that when there
is more unemployment there is more competition for humbler jobs, including those paying statutory minimum
wages. A disabled person seeking employment today in the limited range of low paid jobs such person can
handle faces competition from unemployed persons who are not disabled and whose training and abilities fit
them for better jobs. The possibilities for improvements, or deteriorations, in economic conditions or for
structural changes or for governmental and other affirmative action programs targetted toward youth
unemployment make it difficult and dangerous, and therefore improper, to attempt to predict whether
unemployment will be a greater or lesser problem when Rachel attains the age when she might be expected
to attempt to enter the paid labour forces. However, whether unemployment in general is the greater or
lesser than now, it is reasonable and proper to note that in conditions of significant unemployment a
willingness to work for the statutory minimum wage does not assure the absence of competition from able-
bodied persons with more to offer in terms of intelligence, education, feasibility and evidence, to say nothing
of those aspects of personality and attractiveness stressed in many service jobs.
There is no evidence as to whether it is probable or improbable that Rachel would be able to become
licensed to drive a motor vehicle.
The expert evidence as to employment possibilities was very brief and was expressed negatively, in that it
was to the effect that Rachel was not likely to ever be able to earn more than the statutory minimum wage.
That is an opinion as to the upper limit; it leaves open the whole question of the down side. It is reasonably
possible, although one cannot say probable, that a person who, according to the expert evidence, will be
self-sufficient in her own dwelling only with some institutional support, would be restricted on the employment
front to work in a sheltered workshop.
Thus far I have considered mental and physical disablement to the exclusion of the emotional element.
The evidence of Miss Delion, the experienced teacher, was to the effect that Rachel was cooperative, tried
hard and was pleasant to work with. On the other hand, Dr. Trites noted behaviour problems in the form of
manipulativeness and recommended behaviour therapy and, in his final report, noted the persistence of
manipulative tendencies and lack of cooperation. And Dr. Doyle stated that developmental deficits usually
give rise to behaviour problems. Rachel has been the object of a great deal of attention. Exhibit 1, a
statement of the Ministry of Health as to the OHIP claims, discloses that to July 21, 1980, Rachel had had
352 therapy treatments. That says nothing of medical examinations, special schooling and the almost
constant attention of her devoted and often anxious mother. Rachel was and is to continue to be the focus of
special attention into the normally rebellious teenage years. It is unreasonable to assume that there is not a
very real possibility that she will emerge with attitudes that will increase her difficulties in the employment
market. She is no vegetable; she will be aware that she is not like other girls of the same age. Her difficulties
and prospects, as perceived by her, are likely to be such as to increase the risk of depression and her
vulnerability to escape mechanisms including alcohol and drugs. She faces the problems of puberty and
sexuality as the child of a broken and highly stressed home. The results of the accident, in emotional terms,
must surely be to exacerbate her problems and increase her vulnerability. These matters impact not only
 21

upon Rachel's claim for non-pecuniary damages but also, upon employability and therefore upon the
determination of loss of future income.
Viviane Lapensee's Employment Record and Earnings
(Mrs.) Viviane Lapensee was 23 or 24 years old at the time of the accident and had been separated from
her husband since November, 1974 (some four months after the birth of Rachel). She and her husband were
subsequently divorced and although as a result of the divorce proceedings the husband was ordered to pay
support for Rachel he did not do so. Mrs. Lapensee's efforts to enforce the support order availed her nothing.
According to uncontested evidence of Mrs. Lapensee, which I accept, her husband, (Rachel's father), worked
as a house painter and, she believes, had left school while in Grade 10.
Mrs. Lapensee herself left school after completing Grade 10. In 1970 she worked for the Department of
External Affairs for ten months as a file clerk and then transferred on November 12, 1970 to the Canada Post
Office where she worked, with some leaves of absence, until April 1, 1977, the effective date of her
resignation. She had not worked from April 1, 1977 until the trial and had been on mother's allowance
through the whole period, as she had not qualified for unemployment insurance for any period after her
resignation.
The plaintiffs called Miss Carmel Rail of the Fay and Benefits section of Headquarters Administration at
Canada Post who identified a statement (admitted as exhibit 10) of the job classifications and salary levels of
Mrs. Lapensee while she worked at Canada Post, and what her annual incomes would have been thereafter
to December 12, 1982 on the assumption that she had not been promoted beyond her classification upon
retirement, i.e. C.R.-03 but that she had been granted in the intervening years the maximum increments for
that level. According to the evidence, of Miss Rail, and the data in exhibit 10, Mrs. Lapensee had an annual
salary rate of $10,856 when she retired, and on the above assumptions, and assuming no discipline or like
problems, she would have been earning at the rate of $19,016 a year had she been working as a C.R.-03 at
September 12, 1982. I accept that evidence as true.
I also accept the testimony of Miss Rail to the effect that at the time of her resignation she could have had
a leave of absence without pay but that it is unlikely that a leave of absence of more than six months would
have been granted. I also find, based on Miss Rail's testimony, that there could be no assurance that Mrs.
Lapensee could have her job back for the asking.
At the time of the trial Mrs. Lapensee was receiving mother's allowance at the rate of $438 per month and
was living in subsidized housing.
Special Damages

1A)  OHIP Subrogated Claim

As reflected in exhibit 1 the claim in respect of charges under the Ontario Health Insurance Plan
amounted to $12,729.95.

1B)  Claim re Services Provided by (Mrs.) Viviane Lapensee

As stated, Mrs. Lapensee continued to work until the effective date of her resignation on April 2, 1977.
Prior to that date she had the help of family day care arranged, and subsidized, through the Corporation, and
the evidence is that the day care giver was satisfactory and willing to continue. At that date Rachel was
approximately two years and eight and one-half months old and some seventeen months had elapsed since
the accident. With many absences from work Mrs. Lapensee had continued with her job for the first
seventeen months after the accident. She described that seventeen month period as very tough and
demanding. She would rise at six o'clock in the morning, feed herself and Rachel and take Rachel to the
home of the family day care provider and then get io work, by public transit. She would work all day and then
at 4:30 p.m. go by public transit to pick up Rachel and take her home where she alone would look after the
child. She was very rushed throughout that period, having no social life, no time for herself, no outside
activities, and a grinding and emotionally draining routine that made her feel as if she was under seige. In
that period she took a lot of time off to take Rachel to hospitals, and she came under criticism from her
employers but felt she had no choice but to continue to take unauthorized time off whenever Rachel's
 22

condition or treatment required it. In November, 1976 she decided that she could not continue indefinitely
both looking after Rachel and carrying on with her job. At that time she wrote to her employers stating that
she would resign on April 1, 1977, which she did. Doubtless the impending resignation made it easier for her
to take time off in the interval. From Rachel's medical history it is clear that it was easier for Mrs. Lapensee to
have Rachel in family day care for the period immediately after December 2, 1975, when Rachel was
released from the hospital, than it would have been late in 1976 and early in 1977 and thereafter when
Rachel was receiving a great deal of therapy and was not yet attending school on a full time basis. The
plaintiff's claim in this area is, in effect, for all the lost wages of Mrs. Lapensee after April 1, 1977 at rates
equal to what she would have been earning if she had stayed at her job and had received maximum
increments but no promotions.
It was conceded on behalf of the defendant Corporation, and without comment or objection from counsel
for Mrs. Couvillon, that Rachel needed Mrs. Lapensee's full time attention for six months to a year but that
Mrs. Lapensee's decision to stay off work indefinitely and devote herself to Rachel's care was a matter of
personal choice, and not necessity, and as such something for which she should not look to the defendants
for compensation. It was also submitted that the course followed by Mrs. Lapensee, not being necessary,
represented a failure to mitigate her damages.
It would be wrong to lose sight of the fact that before the accident the plaintiff Viviane Lapensee was
already in the difficult and often harrowing position of being a single parent of modest means.
However, although I do accept the defence submission that Rachel's condition does not justify an
indefinite period in which Mrs. Lapensee may reasonably expect to be off work and compensated for it by the
defendants, I do not find the suggested period of six months to a year to be appropriate. Given Rachel's
condition and therapy requirements, it appears to me that the proper allowance in this area includes a
modest amount for extra services prior to April 1, 1977, an allowance for salary lost in the period from April 1,
1977 to September 1, 1980, and a modest amount for extra services in the period from September 1, 1980 to
October 21, 1982. With respect to the period from April 1, 1977 until September 1, 1980 it is appropriate to
base the compensation on the rates of remuneration which, according to the evidence, Mrs. Lapensee would
have been earning had she remained at her job and received maximum increments but no promotion.
According to exhibit 10, Mrs. Lapensee's earnings for the period in question would have been as follows:

Period In Months Annual Rate Amount

Apr.1/77 to Oct.1/77 6 $10,856 $ 5,428.00

Oct.1/77 to Nov.14/77 1-1/2 $11,173 1,396.62
Nov.14/77 to Nov.13/78 12 $11,843 11,843.00
Nov.13/78 to Nov.12/79 12 $12,731 12,731.00
Nov.12/79 to Sept.1/80 9-1/2 $14,004 11,086.50
----------
$42,485.12
----------
The figure of $42,485.12 represents gross income for the three and one-half year period, making the
average gross annual income $12,141.46. Assuming that the child Rachel would have been claimed as the
equivalent of a marital deduction, that the $100 flat amount would have been claimed for charitable donations
and that certain child care expenses would have been payable in respect of the three and one-half year
period, bringing the claim for services in this period to $36,485.12. For the first seventeen months after the
accident, having regard to the fact that for one month Rachel was in the hospital and that thereafter day care
was provided through the Corporation (as it or its equivalent would have been had there been no accident),
but also having regard to the exercise therapy, the extra time in dressing and feeding the child, the time
taken off and the lost lunch hours for visits to the hospital, and the care over and above the care that a
healthy child of the same age would have required, I allow $5,000 for care services only. That last amount is
completely apart from lost care and companionship and the other factors of a claim under s. 60 of the Family
 23

Law Reform Act, R.S.O. 1980, c.152. With respect to the two year and one month period from September 1,
1980 to October 21, 1982, I allow for the extra services of Mrs. Lapensee to Rachel the sum of $7,500. The
$5,000 and the $7,500 amounts are without deduction for income tax. The amount of special damages for
services rendered to Rachel by Mrs. Lapensee in the seven years before the trial is thus a total of $48,985. I
am confident that services at all comparable to those provided to Rachel in the periods in question could not
have been purchased from outsiders for less without scanting on their quality and value to the child.
Claim of Viviane Lapensee under s. 60 of the Family Law Reform Act
Mrs. Lapensee claims compensation under s. 60 of the Family Law Reform Act for loss of guidance, care
and companionship. At the time of the accident Mrs. Lapensee had been a single parent mother for
approximately one year. Her life was a hard one but she was coping and her only child was healthy and
normal. She could reasonably look forward to a happy and close relationship with a daughter who would
increasingly provide companionship and later care and guidance. While it is manifest from her actions in care
of the child and from her whole bearing at the trial that she is strongly bonded to the child, there can be no
doubt that her loss, in terms of the potentials for the nature and quality of her relationship with Rachel and
the guidance, care and companionship that might have been hers, is a heavy one.
She is likely to be close to Rachel all of her own life. While the relationship is bound to afford some
rewards, and may come to involve deep affection, the only reasonable prognosis is that at the emotional
level as well as in the more mundane aspects of care, Mrs. Lapensee will find herself overwhelmingly in the
giving role, as an underwriter of another's well-being and without the effective reciprocity of care and
companionship that a loving parent so often derives from a growing child and a young adult child, to say
nothing of later in life.
Whatever other arrangements may be worked out the reasonable expectation is that Mrs. Lapensee will
perforce be in a giving role for a long time - and may receive in return little in terms of care and
companionship and virtually nothing in terms of guidance. The real effect of the accident upon her life is
incalculable. Having regard to the provisions of s.60 and to the fact that perfect compensation is not possible
I assess her general damages at $30,000.
Cost of Future Care
The main evidence bearing upon the question of future care is that of Dr. Doyle to the effect that Rachel
will in his opinion probably be self-sufficient in her own separate dwelling unit, with some institutional
supports. There is no evidence as to what those supports might be or whether they would involve any direct
cost to Rachel. There is no evidence of any need of, or use for, prostheses or nursing or ongoing special
medical attention. The special school classes that have been and doubtless will continue to be main features
of her education are social costs not charged to student or parent. When she ceased to be an infant and was
enrolled full time in school, albeit in special classes, the amount of therapy provided outside of the school
system, and so involving special services to arrange it and to transport her to and from it, was sharply
reduced.
There is no evidence on the basis of which the prognosis that as an adult Rachel will be virtually self-
sufficient in household matters can be assessed as to its degree of probability or as to the obverse, the
degree of probability of her requiring domestic help or institutionalization on a continuing or recurrent basis.
An underestimation of the possible costs of such care would be likely to have, as one of its effects, an
increase in the burden on the public purse. While that, where the facts make it true, is regrettable and wrong
in principle, no award in respect of the cost of possible future care can in fairness to the defendants be made
on the basis of the evidence in this case.
Prospective Loss of Earnings
The infant Rachel's continuing mental and physical impairment represents the loss or diminution of a
capital asset, i.e. the prospective ability to earn income: Andrews et al. v. Grant & Toy Alberta Ltd. et al.
(1978), 83 D.L.R. (3d) 452. As Rachel was only 15-1/2 months old at the time of the accident there is little
evidence upon which to base an individualized estimate of her probable future earning capacity. The Court,
however, must do the best it can in the circumstances. Unfortunately, the plaintiffs' case included no actuarial
evidence whatsoever, making a difficult task more difficult by requiring increased reliance on averages and
other statistics. It is some consolation that the very young age of the infant plaintiff would have forced more
 24

recourse to general averages in any event than would have been necessary in the case of a plaintiff about
which more was knowable.
The medical evidence is that Rachel was a normal and healthy child, and that, in the absence of any
evidence tending toward a contrary result, makes it reasonable and proper to assume that she would have
the average life expectancy. According to the 1975-1977 Canadian Mortality Table published by Statistics
Canada a one-year old female child had a life expectancy of 77.41 years and a two-year old female a life
expectancy of 76.49 years. There is no evidence that Rachel's injuries have shortened, or probably have
shortened, her life, and so it is proper to assume that at the time of the accident she had a life expectancy
somewhat in excess of 77 years. As the concern here is with Rachel's working life and not her whole life, that
assumption as to life expectancy is not as important as it would be in the calculation of an award for the cost
of future care.
Given the educational and socio-economic levels of her mother, and the absence of any evidence to
suggest that Rachel was other than an average child, it is reasonable to assume that Rachel would have
entered the labour force, without post secondary education, at the age of 18, say on July 15, 1992. Although
the retirement age of 65 has come under upward pressure in recent years it remains, by a wide margin, the
most prevalent retirement age and so is, in the absence of any evidence tending toward a different age, in
my opinion the one to be adopted for this purpose. On that basis, the prospective working life of Rachel,
barring contingencies, would have been 47 years.
The contingencies and hazards of life bearing upon prospective loss of earnings are principally those
arising from risks of unemployment, accident and illness that would have confronted Rachel in the
employment market had her abilities not been impaired by the accident here in question. In Andrews v. Grant
& Toy Alberta Ltd., supra, Dickson J. applied the 20 per cent discount that had been applied by the trial judge
and thereby removed the additional 10 per cent that had been applied by the Court of Appeal of Alberta.
Dickson J. also called for better statistical evidence on the issue. As I read that judgment Dickson J. was
certainly not laying down a general rule calling for a discount of 20 per cent; he was calling for statistical
evidence and he was deciding in its absence not to depart from the 20 per cent contingency deduction made
by the trial judge. Here, there is no statistical evidence of the sort called for by his Lordship, and we have the
case of an infant plaintiff whose real prospects, before the accident, are extremely difficult to estimate. The
assumption that Rachel would not have taken post-secondary education, while reasonable in the
circumstances, may be in itself a discounting of her prospects. In Cooper-Stevenson and Saunders, Personal
Injury Damages in Canada (1981), (Carswell), at p. 247 it is noted that in Andrews, supra, Dickson J. gave a
warning against excessive reductions and that in the third decision of the so-called "trilogy", Thornton v.
Board of School Trustees of School District No. 57 (Prince George) (1978), 83 D.L.R. (3d) 480, Dickson J.,
while upholding the British Columbia Court of Appeal's application of a 10 per cent contingency deduction,
noted that:

The imposition of a contingency deduction is not mandatory, although it is sometimes treated

almost as if it were to be imposed in every case as a matter of law. The deduction, if any, will
depend on the facts of the case, including the age and nature of the employment of the plaintiff.
Here, where the injuries will reduce the infant plaintiff's earnings and reduce but not eliminate her
employability there is in my opinion a proper case for a low contingency deduction or perhaps none at all. In
the circumstances believe a contingency deduction of 10 per cent is appropriate in respect of the
contingencies I mentioned above, and this is what I shall apply.
An amount recoverable in respect of prospective loss of earnings, being recovery on account of loss of or
damage to a capital asset, i.e. the prospective ability to earn income, is not to be reduced on account of the
income tax that would have been levied upon the deemed to be lost income had the income been earned. (In
this regard see Keiser v. Hanna (1978), 82 D.L.R. (3d) 449 (S.C.C.); Andrews v. Grand & Toy Alberta Ltd.,
supra, and Guy v. Trizec Equities Ltd. (1980), 99 D.L.R. (3d) 243 (S.C.C.), and the earlier decision, R. v.
Jennings (1966), 57 D.L.R. (2d) 644 (S.C.C.).
Another element of uncertainty is removed by rule 53.09 of the Rules of Civil Procedure which states as
follows:
 25

53.09. The discount rate to be used in determining the amount of an award in respect of
future pecuniary damages, to the extent that it reflects the difference between estimated
investment and price inflation rates, is 2-1/2% per year.
The question of determining for these purposes, or, more accurately coming to a reasonable estimate for
these purposes of, what would have been Rachel's earnings level in the absence of the accident is a difficult
one, because she was injured when very young and her own life and pre-accident attributes provide little
guidance beyond the finding of good health and the assumption of average intelligence. In such
circumstances the educational and income levels of the parent or parents assume more importance than
they would have if Rachel had been older when injured. The effect of parents' socio-economic status is more
prominent when their status is humble. The advantages of moderate wealth or of a modicum of affluence,
with their virtual assurance of greater opportunities, are taken into account, but high levels of attainment on
the part of either or both parents, suggesting high intelligence in the parents, do not result in the same high
intelligence being imputed to a mentally disabled child. In this case the mother's education, earnings and
socio-economic status suggest that Rachel's earning capacity would probably not have been above average
and may have been somewhat below average. At the trial the only evidence led as to earnings was the
above-mentioned evidence as to what the mother's earnings would have been at Canada Post if she had
continued in her employment there (summarized in exhibit 10). Exhibit 10 reflects that at December 12, 1982,
Mrs. Lapensee's annual rate of remuneration was likely to have been $19,016, with subsequent annual
increments then limited to a maximum of 6 per cent. That income if increased at 6 per cent per year would
now be $21,598.47.
In Arnold v. Teno (1978), 83 D.L.R. (3d) 609, where the Court of Appeal made an award for future loss of
income of a severely disabled infant, aged 4-1/2 years at the time of the accident, based upon the mother's
income of $10,000 as a primary school teacher, the Supreme Court of Canada reduced the award to an
amount that was stated to be the equivalent of $7,500 per year, which was then reduced by a 20 per cent
contingency deduction. That was a case of total disability; this, on the evidence, is a case of partial disability,
where the expert evidence is that Rachel's income will not exceed the level of the minimum wage.
In the circumstances, it is in my opinion fair and equitable to allow an amount recognizing that in terms of
today's dollars Rachel's prospective income when she attains 18 and thereafter will have been reduced by
annual amounts equal to approximately $6,000 per year in today's dollars, after a 10 per cent deduction for
contingencies (i.e. $6,600 per annum before that deduction).
It is at this point that the absence of actuarial evidence presents real difficulties. What was to be expected
was actuarial evidence involving a statement of reasonable assumptions or findings as to: (i) the infant
plaintiff's pre-accident life expectancy; (ii) her assumed date of commencement of employment; (iii) the
assumed duration of her working life (with explanations of special mortality rates, if any, predicated on her
pre-accident medical weaknesses, if any); (iv) the period of deferral, before the date upon which it was
assumed her employment would commence; (v) the net discount rate as discussed in rule 53.09; and, finally,
(vi) the discounted cost of the equivalent of $1,000 per year of income over the assumed working life of the
plaintiff. For reasons outlined above it is possible to make findings, as I have done, as to items (i) through (v)
above. What is missing is the actuarial result or opinion referred to in (vi) above. Given the elements in items
(i) through (v) above, the missing element happens to be one of actuarial calculation, of "number crunching",
rather than one involving, as so many actuarial opinions do, the higher functions of the actuarial professional
where, for example, professional opinions are expressed, on the basic known principles but involving
important elements of judgment, as to combinations of macro-economic considerations and the broad sweep
of history. Fortunately for the plaintiff, such riches of the upper reaches of actuarial knowledge were not
required in this case. I pause to express humble thanks to all those whose efforts led to the adoption of the
present rule 53.09 and its predecessor, the former Rule 267a, without which I could not now conclude that in
what follows I am proceeding, albeit in rough hewn and approximate way, with the guidance of actuarial
principles and not on the basis of a general global estimate of loss of future income, such as often used to be
made before the decisions in Teno v. Arnold, Andrews and Thornton provided new directions in this area.
I was fortunate to learn of the reasons for judgment of the Honourable Mr. Justice Hinds of the British
Columbia Supreme Court in Wipfli v. Britten (1982), 22 C.C.L.T. 104, in which at p. 137, speaking of the
expert evidence given by the actuary, Mr. Collisbird, he made the following statement:
 26

Mr. Collisbird gave useful evidence in connection with the present value of the infant
plaintiff's prospective income loss. He assumed Joey would commence work at age 20 and
continue to work until age 65. He used a net discount rate of 2-1/2 per cent per annum
compounded. He took into consideration the survival rates for males. He also took into
consideration the period of deferment between the boy's present age and the anticipated date
of the commencement of employment at age 20. He arrived at a "factor" of $18,040 per $1,000
of net lost income in order to determine the present capitalized value of the income loss. Mr.
Collisbird was not seriously challenged on his calculations, or on his final "factor", and I accept
it. The present value of Joey's $3,000 per annum net income loss is, therefore, $54,120.
I interpret the statement, "He took into consideration the survival rates for males." to be a reference to
mortality data affecting Canadian males generally and not to the result of any special or unique factors
affecting the life expectancy of the plaintiff, Joey. In any event the question of life expectancy is subsumed in
the statement of the assumed working life of 45 years. The period of deferral referred to by Hinds J., it is
clear from other parts of the reasons, is the period from the date to which the actuarial calculations are made
to the date when the infant plaintiff, Joey, would have commenced work at age 20. That was a deferral period
of more than 14 years. Thus both the Wipfli case and this case involve a net discount rate of 2-1/2 per cent
per annum, an assumed working life and a deferral period before the working life is assumed to continue. As
stated above the assumed working life in this case, based on the medical evidence, is 47 years, in contrast
to the 45 years in Wipfli. In this case the period of deferral is less than 7 years in contrast to the 14 years in
Wipfli. It is obvious that the effect of the longer working life would make the cost per $1,000 of income per
year somewhat higher in this case than in Wipfli and that effect of the much shortened deferral period would
be in the same direction. Thus, of the three relevant factors one is common and the other two would
obviously make the "factor" in this case significantly higher than the $18,000 per $1,000 factor in Wipfli. It is
obvious from these, the only, factors that had there been actuarial evidence in this case it must have
disclosed a factor or cost per $1,000 of income that was greater and perhaps significantly greater than the
$18,040 calculated in Wipfli.
I am not free to apply the Wipfli decision, because even when, as on this point, it involves no more than
sophisticated calculations (but mere calculations none the less), it is still, technically, evidence from another
case. But I will not deny that I find the case comforting, because in proceeding without actuarial evidence,
after all the warnings to plaintiffs and others from the Supreme Court of Canada as to its utility and
importance, I must in fairness to the defendants be certain that my award for prospective loss of earnings is
clearly not greater than it would have been had the plaintiff presented actuarial evidence on the point. The
importance of assuming that the defendants are not prejudiced justifies in my opinion the deliberate creation
of a margin for error. Thus, although I have concluded that throughout her working life the plaintiff's loss of
prospective income after a deduction for contingencies amounts to $6,000 per year, in terms of current
dollars, and although I believe the amount required to fund $1,000 per year of such income to be in excess of
$18,000, I award the plaintiff under this heading not $108,000 or a higher amount but $l00,000. My aim is to
deal with the absence of actuarial evidence in a manner that does substantial justice to the infant plaintiff
while assuming that the burden of non-compliance with the exhortations of the Supreme Court of Canada as
to the provision of actuarial evidence falls on the plaintiffs and not on the defendants.
Rachel's General Damages
Rachel has sustained serious injuries that will leave her permanently and significantly disabled both
mentally and physically. In terms of pain and suffering there is no evidence that she experienced acute or
enduring pain. Her main injury is a brain injury entailing developmental deficits and loss of capacity but not
much physical pain if I may use that term as a contrast to mental distress.
In terms of suffering the position is quite different. She has suffered through isolation, hospitalization,
therapy, special and unflattering attention, and many restrictions. ln terms of loss of amenities of life she has
been, and more importantly will be, deprived of much, including the ability to run free and play like and with
normal children, the chance to participate in sports and other social activities such as dancing. It need not be
shown that she will do no sports and will never go to dances; the prospect is that she will not be able to
compete in sports or to participate fully - be accepted to participate fully - in a wide range of social,
educational and community activities. She will often be set apart. And throughout she will have varying
degrees of awareness of her plight and will experience obvious mental distress. Her self image and her
 27

perception of her reputation will be negatively affected. She will be aware that most others can do things that
she cannot do, in sports, in jobs, in school and in social relationships. Incontestably her chances for a happy
and successful arriage or like relationship have been reduced.
It has long been recognized by the law that no award of monetary compensation can really compensate
effectively for Rachel's losses of the sort considered here. In the leading decisions of Andrews, Arnold v.
Teno, and Thornton the Supreme Court of Canada committed courts in Canada to a functional approach to
general damages for personal injuries. Under that approach the emphasis is on compensation to provide the
injured plaintiff with reasonable solace for her misfortune rather than upon an attempt to set a value on lost
happiness. It has been made clear that "solace" in this context refers to the provision of physical
arrangements and services that tend to make the disabled plaintiff's life more endurable.
In this case, in contrast to many involving brain damage, there was no award for the cost of future care
and so the elements of amenity that are often introduced under that heading, albeit in pursuit of other
objectives, are not present here. The infant plaintiff's needs like her head injury are diffuse. They are,
however, wide ranging and will extend over a long time, Rachel being young and loss of expectation of life
not being a factor.
The same intelligence that will on the down side cause Rachel to be aware of, and to suffer mental
distress on account of, her condition and her many limitations can be expected, on the up side, to enable her
to enjoy and to derive solace from a wide range of items and assistance. Thus, it would obviously help a
person expected to have difficulty with athletic activity to have special training in swimming and readily
available transportation to and from locations where she can swim and obtain swimming lessons. A girl who,
for reasons of continuing poor balance, will probably never ride a bicycle should have ready access to taxis
so she is not discouraged from getting around to places not well serviced by public transit. A person who has
difficulty with stairs would benefit from the financial ability to pay more in rent so that she could live in a
building with an elevator. A person concerned about physical disability can derive solace from good clothing
with an element of style, and more than usual benefit from the regular services of a hairdresser and a dentist.
The ability to travel could provide a directly referable compensation to a person who probably will not be able
to derive much pleasure from reading and who will not be able to participate in many activities. A modest
winter vacation in the south, for sun and swimming, at a time when her age peers may be doing the same or
may be enjoying skiing can hardly be considered overcompensation. Nor should Rachel be denied the
means to eat out from time to time and to ask her mother to join her. Moreover, she should be allowed to
participate in ordinary social life in a way that would permit her to give usual and customary gifts to her family
and friends. Rachel should also have financial resources to permit her to participate in local outings
organized by church groups and others, and to permit her to follow sporting and musical events as a
spectator and to attend ice shows and circuses. Rachel has continuing disabilities of the sort that could well
make morale a problem, and one concomitant of that is that matters of solace may also serve as matters of
therapy tending to keep her more viable and employable by tending to ward off depression.
In all the circumstances I believe an award of $75,000 for general damages to be fair and reasonable
having regard to the interests of the infant plaintiff and of the defendants.
Management Fee; Spendthrift Provision
No claim was made for the estimated cost of management fees of persons who might be retained to assist
the plaintiffs, and particularly the infant plaintiff, to manage the funds herein adjudged payable. Moreover, as
the award in respect of Rachel's prospective income loss will, subject to further order, be held by the
Accountant of the Supreme Court be kept invested until Rachel attains the age of 18 and to be released only
after notice to the Official Guardian, and as the amount payable for the account of Rachel by way of general
damages is also to be held by the Accountant until Rachel is 18, subject to further order of this Court on
notice to the Official Guardian, the need for professional management advice is considerably diminished.
Given the enduring nature of Rachel's mental impairment, it is ordered that upon Rachel's attainment of the
age of 18 years the amount, or the balance of the amount, held by the said Accountant not be paid out to her
except on the order of this Court after notice to both the Official Guardian and the Public Trustee, so that
consideration may then be given to the question of whether all or part of the balance should be invested in
one or more annuity contracts.
Summary
 28

At trial it was agreed that prejudgment interest would run on the general damages from November 26,
1977 and that the appropriate rate under the then applicable Judicature Act, R.S.O. 1980, c. 223 was 8.25
per cent per annum. The date of the various OHIP charges make November 26, 1977 also an appropriate
date for the commencement of prejudgment interest on that element of the special damages. However, in
view of the period over which the pre-trial services of Mrs. Lapensee were provided, and the fact that the
largest part of those special damages relate to the period from April 1, 1977 to September 1, 1980, I find it
appropriate and fair to commence the prejudgment interest on that element of the special damages from
January 1, 1979. The summary of the disposition of this matter is therefore as follows:

1Mrs.)  Viviane Lapensee

Special Damages

Value of services $48,985.12

Plus int. from Jan.1/79 28,621.07 $ 77,606.19
----------

General Damages $30,000.00

Plus int. from Nov.26/77 20,240.75 $ 50,240.75 $127,846.94

---------- -----------
Rachel Lapensee
Special Damages

OHIP $12,729.95
Plus int. from Nov.26/77 8,588.78 $ 21,318.73
----------
General Damages
Pecuniary:

(A) Cost of Future Care $ 0.00

(B) Prospective Loss of
Income 100,000.00

Non-Pecuniary: $75,000.00

Plus int. from Nov.26/77 50,601.88 $125,602.88 $246,920.61

--------- -----------
Costs
I have, of course, no knowledge of any offers to settle that might bear on the question of costs. In the
circumstances I order that costs shall follow the apparent event and that the plaintiffs shall have their costs
on a party and party basis payable forthwith after assessment provided that no appointment for such
assessment shall be taken out, nor shall this order as to costs become final, until ten days from the date
hereof, and provided further that if within such ten days either defendant shall serve and file a notice as to a
 29

relevant offer of settlement then this order as to costs shall not become final until the issue of costs has been
spoken to.
SUTHERLAND J.