What are Valuable Services?

The person injured as a result of the negligence of someone else is entitled to claim compensation for the damages suffered, which can be pecuniary or non-pecuniary in nature (see “Pecuniary Damages vs Non-Pecuniary Damages”). The pecuniary damages are those that are monetary in nature, either by way of additional expenses incurred or revenue lost due to the tortious act. It is easy to understand that an injured individual may no longer be able to perform certain tasks after an accident. Thus, in order to maintain a certain lifestyle, that person may be compelled to hire people to assist with household chores that previously he or she could do for himself or herself. Such assistance is known as valuable services.

In some respects, valuable services can be seen as overlapping medical treatments. For example, a quadriplegic victim who can no longer perform his or her activities of daily living, like grooming, bathing, cooking, shopping, etc., may require assistance with those in order to survive, in addition to other types of household chores like cleaning, shoveling or driving. It may be difficult to differentiate between the types of services although there is no doubt that they all impose additional costs and expenses to the victim of the tortfeasor.

While medical care will generally be provided by health professionals such as doctors, nurses, physiotherapists, etc., some ‘treatments’ may be performed by family members like a spouse, parent or child. Although the court did not distinguish between cost of care and valuable services, it stated in Andrews v. Grand Toy (Alberta) Ltd, [1978] 2 SCR 229 p. 243, that “there is now ample authority for saying that dedicated wives or mothers who choose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis”. See also Wilson (Litigation Guardian) v. Lackie Bros. Ltd (1985), 62 NBR (2d) 236 paras 13-20 (QB). The fine line between treatments and household chores adds a level of complexity to the assessment of an indemnity for assistance as some tasks might have been shared absent a new disability (i.e. cooking, shopping, etc.).

Notwithstanding the aforementioned quote from the Supreme Court of Canada, in Andrews, supra p. 243, some judges remained reluctant to compensate acts of kindness performed by loved ones, like visiting a child in the hospital while undergoing treatments (Valois v. Long (1984), 56 NBR (2d) 191 para 28 (QB) (this part of the judgment not varied on appeal (1985), 65 NBR (2d) 434 (CA)) or caring for someone out of ‘natural love and affection’ (Donovan v. Sterling (1986), 72 NBR (2d) 104 para 6 (QB)). They also refused claims to hire someone just to keep company (Bryant v. Marshall (1986), 74 NBR (2d) 1 para 37 (QB)) or do gardening (Kochan v. Beaulieu (1986), 73 NBR (2d) 267 paras 2 & 43 (QB) (this part of the judgment was not varied on appeal (1987), 78 NBR (2d) 376 (CA)). In Valois, supra paras 29-30, although the trial judge refused to compensate the mother for the comfort provided at the hospital, he awarded $2,000 for the care provided at home.

The law has now been clarified that a plaintiff is entitled to claim and be compensated for replacement services rendered necessary by a tortious act, even those provided gratuitously by family members. In Furlotte v. Elward, 2011 NBCA 95 para 16, Justice Larlee wrote, for the unanimous bench:

As a general rule, a claim for loss of capacity to perform valuable services should be allowed […] only if the plaintiff establishes […]: (1) he or she was disabled by an accident-related condition from performing the task for which a claim is made; (2) but for the accident, the plaintiff would have performed the task in question; and (3) what it would have cost to have a professional service provider perform the task […]. Generally speaking, it makes no difference that the task was not performed, or that it was performed gratis or at a special discount rate by a family member or a friend. The award is designed to fairly compensate the plaintiff for his or her loss of capacity to perform the task in question.

See also Cormier v. Lanteigne (1999), 224 NBR (2d) 263 (QB); Boucher v. Doiron, 2000 NBCA 18 paras 25-31; Milliard v. Mesheau, 2006 NBQB 385 paras 93-104, affirmed at 2007 NBCA 37. Thus, although providing comfort (Valois, supra) and company (Bryant, supra) may remain not compensable, nursing services by family members (Donovan, supra) and gardening services (Kochan, supra) are probably covered where the 3-part test is satisfied.

A claim for loss of valuable services does not need to be substantiated by documentary evidence (Wallace v. Thibodeau, 2008 NBCA 78 para 26), but it is still necessary to present some proof in order to be successful (Lanteigne v. Lavoie Bus Tours Ltd (1984), 55 NBR (2d) 403 para 34 (QB); Bulmer v. Horsman (1985), 68 NBR (2d) 31 para 40 (QB), not varied on appeal (1987), 82 NBR (2d) 107 (CA); Marney v. Bannister (1986), 68 NBR (2d) 253 para 17 (QB)). As for assessing the value of the claim, it has been held that the care provider’s “loss of salary is in no way relevant in regard to the value of care provided”: Valois, supra para 30 (not varied on appeal). In Valois, the mother, a supply teacher, claimed her lost income as the cost of valuable services. The trial judge rejected that approach in the aforementioned words. The proper method for assessing valuable services is the “replacement cost model” (Furlotte, supra para 19), or “what it would have cost to have a professional service provider perform the task” (ibid para 16). Where a plaintiff is not prevented from performing household chores, but requires more time and suffers increased symptoms, then he or she is compensated through an increased award for pain, suffering and loss of amenities of life: Sinclair v. Dines, 2005 NBCA 15 paras 20-21.

Past Loss of Valuable Services

When an award is granted for loss of valuable services covering the period before the trial, it is then known as special damages. To be successful, the plaintiff needs to prove, on a balance of probabilities, the 3 criteria quoted above from Furlotte, supra para 16 (see “Proof of Past Events vs Future Contingencies”). On this topic, the law and the practice have evolved somewhat since the 1980s.

At that time, where replacement services were offered gratuitously, some judges awarded an amount directly to the care providers joined as plaintiffs in the action (Roussel v. Plourde (1982), 42 NBR (2d) 257 para 31 (QB); Lepage v. Hickey (1982), 43 NBR (2d) 328 para 12 (QB); Savoie v. Mallais (1983), 50 RNB (2d) 189 para 30 (QB); Lanteigne v. Lanteigne (1984), 54 NBR (2d) 318 para 21 (CA); Noël v. Duguay (1987), 83 NBR (2d) 320 para 35 (QB); Riordon v. Palmer (1988), 89 NBR (2d) 326 para 17 (QB)), or to the plaintiffs with ‘a moral obligation’ to reimburse the care providers (Valois v. Long (1984), 56 NBR (2d) 191 para 30 (QB); Bustin v. Kelly (1986), 70 NBR (2d) 156 paras 65-66, 83, 99-102, 105 & 125 (QB)). Where there was proof that the plaintiff paid for assistance out of his or her own pocket, he or she was reimbursed the amount (Cyr v. Doucette (1983), 56 NBR (2d) 124 para 16 (QB); Donaldson v. Desroches (1985), 61 NBR (2d) 313 paras 59 & 91 (QB); Bryant, supra paras 31-33; Mullin v. Tozer (1986), 70 RNB (2d) 403 paras 86-87 (QB), upheld at (1987), 83 NBR (2d) 266 (CA); Roy v. Lagace (1986), 69 NBR (2d) 415 paras 24-26 (QB); Landry v. Doucet (1988), 89 NBR (2d) 300 para 10 (QB); Ouellette v. Caron (1988), 85 NBR (2d) 273 para 26 (QB)). On few occasions, an award was given without a clear indication that the plaintiff had incurred the expense (Thériault v. Conseil des loisirs de Bertrand Inc. (1987), 87 NBR (2d) 22 paras 32 & 34 (QB)).

Nowadays, as revealed in the quote above, whether services are received gratuitously or not, the damages are paid to the plaintiff without any obligation to reimburse the service provider. It is no longer “a matter of making an award in trust for the service provider; it is a matter of compensating the plaintiff for his or her loss of capacity”: Furlotte, supra para 19. Thus, the practice of joining the care provider as a plaintiff in the action has become obsolete.

Future Loss of Valuable Services

On the other hand, a claim for future loss of valuable services will be successful when there is a real and substantial possibility that such cost will be incurred in the years following the trial: Wallace, supra paras 32-43; Cormier, supra. Where the 3-part test for valuable services is met, on a balance of probabilities, to justify an award for the past, and the evidence shows the likelihood of the condition to continue in the foreseeable future, it will usually be easy to establish the loss for the future. The main issue thereafter will be to determine at what age the services should end to account for the natural aging process when the plaintiff would have normally contracted for assistance: see Wallace, supra para 42.

Among future housekeeping activities compensated there are cleaning, shoveling snow, mowing the lawn and painting the house: Wallace, supra; O’Brien v. David L. Lester Ltd (1988), 88 NBR (2d) 384 paras 30-31 (QB); Chiasson v. Thériault, 2008 NBQB 177 para 134-145; Matthews v. McIntyre, 2019 NBQB 127 paras 73-75.

This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.