Cost of Future Care in Ontario Personal Injury Claims: The Legal Test and Life Care Plans

In an Ontario personal injury claim, a plaintiff seeking cost of future care damages must prove a real and substantial possibility that future care will be required because of the injury. The proposed care must be medically justified, reasonable and reasonably necessary in the plaintiff’s circumstances. A life care plan can identify and cost future services or equipment, but it does not by itself prove entitlement to cost of future care damages.

Serious injuries can leave people facing years or decades of treatment, assistance, equipment and support after the lawsuit is finished. Depending on the injury, that can include attendant care, rehabilitation, psychological treatment, medication, assistive devices, case management, accessible transportation, home modifications and replacement of necessary equipment over time.

In some claims, cost of future care is one of the largest components of damages. It can determine whether the injured person will be able to live safely, obtain treatment and preserve a reasonable degree of independence after the case ends.

But a future care claim is not proven by obtaining a report with a long list of recommended items and a large number at the bottom.

The claim starts with evidence of need: what changed because of the injury, what the plaintiff will require going forward, who supports those needs, whether the proposed care is reasonable and what it will cost to provide that care.

This is an important part of the work done by Ontario personal injury lawyers in serious injury cases. Once a claim resolves, the injured person will generally have to live with the settlement or judgment even if future care later costs more than expected. However, the defendant is able to challenge care that is not connected to the injury, is unsupported by the evidence, duplicates another claim or is unlikely to be required.

What is a cost of future care claim?

The cost of future care compensates plaintiffs for injury-related expenses expected to arise after settlement or trial.

The claim depends on the particular injuries and the person affected by it. Someone with a spinal cord injury may require attendant care, transfer equipment, accessible housing and modified transportation. Someone with a brain injury may require supervision, cognitive rehabilitation, behavioural support, case management and help organizing daily life. Someone with a serious orthopedic injury may require ongoing therapy, injections, medication, mobility aids or support with activities that can no longer be completed safely.

The issue is not simply whether the plaintiff would benefit from a service or item. Many people would benefit from additional therapy, home assistance, exercise equipment or a more convenient living arrangement.

The legal question is whether the claimed expense is a reasonable future consequence of the injury caused by the defendant.

Andrews v. Grand & Toy Alberta Ltd. and the foundation for future care damages

The starting point for cost of future care damages in Canada is Andrews v. Grand & Toy Alberta Ltd.

Mr. Andrews was rendered quadriplegic in a motor vehicle collision. One of the major disputes was whether his future care should be valued on the basis of living at home with appropriate supports or on a less expensive institutional model.

The Supreme Court of Canada upheld an award based on home care. The decision remains important because it rejected the idea that a catastrophically injured plaintiff must accept a cheaper and substantially diminished way of living simply because it would reduce the defendant’s exposure.

Andrews does not mean that the most extensive plan will automatically be accepted. The Court also recognized that future care awards must be reasonable and fair to both parties. The plaintiff is entitled to appropriate care supported by the injury and the evidence, not to every improvement in comfort or convenience that can be placed in a report.

That is the tension in future care litigation. An injured person should not be forced into an inappropriate care model because it is cheaper. A defendant should not have to fund care that has not been shown to be required because of the injury.

The legal test for cost of future care in Ontario

Future care is a future pecuniary loss. A plaintiff cannot prove with certainty what treatment, assistance or equipment will be required years after the lawsuit resolves.

Ontario courts have long recognized that future losses can be awarded where the evidence establishes a sufficiently grounded future risk.

In Schrump v. Koot, the Ontario Court of Appeal addressed future loss where there is a reasonable chance that it will occur. In Graham v. Rourke, the Court addressed compensation for a real and substantial risk of future pecuniary loss.

For cost of future care specifically, the clearest recent Ontario formulation appears in Higashi v. Chiarot and was later quoted and applied in Graul v. Kansal:

The real-and-substantial-risk standard applies to future care expenses. The assessment is objective and based on medical evidence. There must be medical justification for the care claimed. The award must be fair and moderate. The care must be reasonably necessary, having regard to the plaintiff’s personal circumstances.

That reason real and substantial risk is utilized as the test is to avoid having courts treat future care as though the plaintiff must prove with certainty that every claimed expense will occur since that would be incredibly difficult. It also avoids treating anything that would improve the plaintiff’s quality of life as recoverable care. That would lead to extremely large future costs of care claims in many cases. The service, item or assistance must be justified by the injury and reasonable in the circumstances.

The injury must be caused by the defendant

The future-loss standard does not alleviate the plaintiff’s burden of proving causation. Before a plaintiff can recover cost of future care, the plaintiff must establish that the defendant caused the injury or impairment said to create the need for care. A life care plan based on chronic pain, cognitive impairment, psychological injury or physical restrictions does not itself prove that those conditions were caused by the incident.

Once the compensable injury is established, the court then addresses the future question: does that injury create a real and substantial possibility that the proposed care will be required?

This distinction matters where the diagnosis is contested, where some of the plaintiff’s limitations existed before the accident, or where the defence argues that items in the care plan respond to unrelated health issues.

Significant future care numbers cannot repair a gap in causation.

Medical justification and reasonable necessity do not require the cheapest care model

Future care claims are often attacked by insurance companies on the basis that a service is not strictly necessary, or that a less expensive arrangement could meet the plaintiff’s most basic needs.

However, the care must be medically justified and reasonably necessary in the plaintiff’s circumstances. The assessment can account for health, safety, function, dignity and reasonable independence.

Individuals who suffered a brain injury might require supervision, cueing or rehabilitation support even though family members have prevented serious consequences so far. Someone with a spinal cord injury may reasonably require home-based attendant care even if institutional care would cost less. A person with chronic pain and psychological injury may require ongoing treatment to preserve function even if no treatment could possibly return the person to their pre-injury condition.

A life care plan does not prove entitlement

A life care plan can be essential in a serious injury claim. It can also make an unsupported claim look more certain than it is. A future care expert may identify a lengthy list of recommended services and equipment, apply frequencies and replacement cycles, obtain prices and produce a very substantial lifetime total. That work can be necessary. The resulting total does not answer the legal question.

The plaintiff still has to prove the need for the items being costed.

Graul v. Kansal is helpful on this issue. Mr. Graul suffered serious injuries in a motor vehicle collision and recovered a substantial award for future care. His future care expert provided evidence about the costs of proposed services. Justice Lemon relied on medical evidence to determine what care was required, rather than treating the future care expert’s recommendations as sufficient proof of need.

That distinction reflects how these claims should be developed.

A life care planner explains what a service or device costs. An occupational therapist can assess daily functioning, safety and practical support requirements. A treating doctor or medical-legal expert can address prognosis, treatment and medical justification. A present-value expert can calculate what a stream of accepted expenses is worth today.

How expert evidence supports a future care claim

Properly developed future care claims often draw on several types of evidence.

A treating physician or medical-legal expert can address diagnosis, prognosis, permanent impairment, future treatment and why an intervention or support is medically appropriate.

Occupational therapists can assess how injuries affect function in daily life: bathing, dressing, transfers, meal preparation, cognition, community access, mobility, safety, equipment, transportation and the need for supervision or assistance.

Life care planners organize recommendations supported by the medical and functional evidence, identify anticipated frequency and duration and obtain costing for services and equipment.

A present-value expert can calculate the lump sum required today to fund approved expenses expected to occur over time.

The order is important. The evidence should establish the need. The appropriate response to that need should then be identified. Only then should the future cost be calculated.

An actuarial or present-value report cannot convert unsupported recommendations into proven damages.

Will the plaintiff actually use the proposed care?

A defendant will often challenge future care on the basis that the plaintiff has not used a recommended service in the past.

Sometimes that criticism is legitimate. A court can be reluctant to award years of a treatment that the plaintiff repeatedly refused, abandoned without explanation, found unhelpful or has no intention of pursuing.

But a lack of past treatment does not always establish that future care is unnecessary.

The plaintiff may not have received appropriate treatment because accident benefits funding was denied. Maybe they could not have been able to afford private services. Family members may have provided unpaid assistance. Suitable services may not have been locally available. In some cases, no one properly assessed the future need until the claim was being prepared for litigation.

The issue needs to be considered item by item.

If the plans includes psychological treatment, who recommends it and for what condition? If it includes attendant care, which activities require assistance and how frequently? If it includes accessible transportation, why can the plaintiff no longer use ordinary transportation? If the plaintiff has not used a proposed service before, what explains that history?

Care already provided by family members

A spouse may help with bathing, dressing, medication, transfers, transportation or supervision. Parents can manage appointments, finances and routines for an adult child with a brain injury. Family members may quietly take over tasks that the plaintiff previously completed independently.

The fact that care was previously provided without charge does not mean the need has no value or that the care will continue indefinitely without cost.

The evidence should still distinguish ordinary family assistance from injury-related care. Helping with an occasional errand is different from daily personal care, supervision because of impaired judgment, assistance with transfers or managing a complex rehabilitation program.

A plaintiff can appear to be functionindependently only because someone else has absorbed the burden created by the injury.

Housekeeping and home maintenance

Housekeeping and home maintenance claims arise from the same functional restrictions that support a cost of future care claim. They should not automatically be folded into medical, rehabilitation or attendant care expenses.

A person no longer able to clean, do laundry, maintain a yard or clear snow can have an injury-related claim for those losses. Claims should be identified separately where the distinction affects valuation, statutory treatment or the risk of duplication.

The distinction is important in motor vehicle accident litigation, where housekeeping and home maintenance have their own treatment in the accident benefits framework. It also matters where the plaintiff advances attendant care expenses together with a separate claim for domestic assistance or reduced capacity to perform household work.

Care plans should therefore distinguish treatment, rehabilitation, personal care and safety supports from services directed to household upkeep.

Competing care models and independence

In catastrophic injury litigation, the main dispute is sometimes not whether the plaintiff needs care, but what kind of life the care should support. Plaintiffs may advance a plan based on living at home with attendants, rehabilitation, accessible transportation, equipment and professional support. The defence may propose fewer hours of care, shared services, a group setting or institutional living at a much lower cost.

Andrews remains important because appropriate care is not determined by selecting the least expensive arrangement that allows the plaintiff to get by.

The Ontario Court of Appeal’s decision in Marcoccia v. Ford Credit Canada Limited shows the point in an Ontario case. Robert Marcoccia suffered severe brain injuries in a motor vehicle collision.

The jury assessed his future care costs at $13,952,064, based on a care model that allowed substantial independence with extensive support and services. The defence argued that a cheaper model should have been preferred. The Court of Appeal upheld the award because it was open to the jury, on the expert evidence, to accept the care model advanced for Mr. Marcoccia.

The case does not mean the most expensive proposed plan will be accepted. It means that where a care model is justified by the evidence, it is not displaced simply because the defence advances a cheaper model with less independence or fewer supports.

Future care has to be valued now

Courts assessing future care is required to fix an award now for expenses that can arise many years into the future.

The Supreme Court of Canada discussed this problem in Krangle v. Brisco. Future care damages are necessarily predictive. No one can know precisely what care will be required in the years ahead, but damages are assessed once and for all. The court has to decide, on the evidence available, what future care should be compensated.

Uncertainty affects almost every significant future care claim. Some treatment will be required for a defined period rather than for life. Equipment may require replacement at intervals. The plaintiff’s support needs can increase with age or as aging family members are no longer able to assist. In catastrophic injury claims, life expectancy can affect the duration of the plan. Some proposed items may be supported as a real future possibility rather than a certainty.

Present value and future care calculations

Once the court accepts that future care is required, the expected costs must be converted into a lump-sum award.

In Ontario, Rule 53.09 of Ontario’s Rules of Civil Procedure governs the discount-rate treatment of future pecuniary damages. The calculation recognizes that money paid now can be invested to fund expenses that will be incurred later.

Large future care claims can also raise issues involving inflation assumptions, equipment replacement cycles, tax gross-up and management fees where the evidence and the circumstances justify those claims.

A present-value opinion can show the amount required today to fund a proven stream of attendant care, therapy or equipment replacement. It cannot establish that the plaintiff requires the care being costed.

Cost of future care in Ontario motor vehicle claims

A motor vehicle claim involves an additional statutory analysis because the plaintiff can have both a tort claim against an at-fault defendant and an accident benefits claim for treatment, rehabilitation or attendant care.

Under section 267.8 of Ontario’s Insurance Act, statutory accident benefits received or available before trial for health care expenses reduce damages awarded within the corresponding health-care category. The section also addresses payments received before trial under medical, surgical, dental, hospitalization, rehabilitation or long-term care plans or laws.

If damages for health care expenses are awarded at trial and the plaintiff later receives specified payments arising from the incident, s. 267.8 contains trust provisions dealing with those later payments. The court also has authority, in the circumstances set out in the section, to order an assignment of rights to specified future collateral benefits.

This means that a future care tort claim cannot be valued without understanding the accident benefits file and any other potentially overlapping health-care payments. Counsel needs to know what care has already been funded, what statutory accident benefits remain available or disputed, whether another plan has made relevant payments and whether future benefit rights need to be addressed if the claim proceeds to judgment or resolves on negotiated terms.

This is particularly important where a future care plan includes attendant care, rehabilitation, medication, assistive devices or equipment that overlaps with categories addressed in the statutory accident benefits system.

The tort claim remains evidence-driven: the plaintiff still needs to prove what future care is reasonably required because of the injury. The collateral-benefits analysis addresses how overlapping payments affect recovery once the care claim has been established.

For information about tort claims arising from motor vehicle injuries, see our Ontario car accident lawyers page.

Future care in serious injury litigation

Cost of future care is most significant where an injury permanently alters the person’s ability to live safely and independently. Brain injuries can create needs for supervision, cueing, behavioural support, rehabilitation, case management and assistance with executive functioning. A spinal cord injury or amputation can require attendant care, mobility equipment, home modifications, vehicle modifications and replacement costs over a lifetime. A serious orthopedic or chronic pain claim can involve ongoing treatment, medication, injections, therapy and practical assistance with activities the plaintiff can no longer complete safely or reliably.

A well-developed claim explains how the person functions, what the evidence says will be needed in the future, which professional supports each recommendation, what the service or item costs and why the proposed care is reasonable for that person.

How future care affects settlement

Cost of future care can be one of the largest areas of disagreement in serious injury settlement discussions. A plaintiff could have a care plan valuing future needs in the hundreds of thousands or millions of dollars. The insurer may argue that the plan includes services the plaintiff will never use, recommendations without adequate medical support, overlap with accident benefits, duplication between care categories or a model of care that is more expensive than the evidence justifies.

Those arguments cannot be answered simply by pointing to the total in a report. Plaintiff’s counsel needs to show the medical and functional foundation for the plan and be able to defend the significant items within it.

A settlement amount can sound substantial and still be inadequate if the plaintiff will need to purchase care for decades after the claim resolves. Equally, a plan that is inflated or poorly supported can make settlement more difficult and create vulnerabilities at trial.

For more information about evaluating settlement proposals, see our article on offers to settle in Ontario personal injury claims.

Serious injury claims can also involve significant economic loss where an injury affects the person’s ability to continue working or compete in the labour market. See our article on future income loss and loss of earning capacity in Ontario personal injury claims.

Frequently Asked Questions About Cost of Future Care in Ontario

What is the legal test for cost of future care in Ontario?

Plaintiffs have to show that there is a real and substantial possibility that future care expenses will be incurred because of the injury. The proposed care must be medically justified, fair and moderate, and reasonably necessary having regard to the plaintiff’s circumstances.

Does a life care plan prove future care damages?

No, life care plans can identify and cost services, supports and equipment. The plaintiff still needs evidence showing that the claimed care is connected to the injury and reasonably required.

Does the plaintiff have to accept the cheapest future care option?

No. Courts assess reasonable and appropriate care for the injured person, not simply the lowest-cost arrangement. The plaintiff still needs evidence supporting the care model claimed.

Can care provided by family members support a future care claim?

Yes. Unpaid family assistance can show that the plaintiff has ongoing care needs. The evidence should distinguish injury-related personal care, supervision or support from ordinary family assistance.

Are housekeeping costs part of future care?

Housekeeping and home maintenance can arise from the same injury, but they should be identified separately from medical, rehabilitation and attendant care expenses where the distinction affects entitlement, statutory treatment or duplication.

Are cost of future care claims different in Ontario car accident cases?

Yes. In a motor vehicle lawsuit, tort damages for health care expenses can interact with accident benefits and the collateral-benefit provisions in s. 267.8 of the Insurance Act.

Conclusion

A cost of future care claim is not proven by producing a lengthy life care plan and a large present-value calculation. The plaintiff must prove that the injury creates a real and substantial possibility of needing future care. The proposed care must be medically justified and reasonable in that person’s circumstances. Significant items should be capable of being defended individually: what need does the item address, who supports it, how often is it required, for how long and why is the expense attributable to the injury?

In serious injury litigation, the answer can determine whether the plaintiff has the resources to live with reasonable safety and independence after the lawsuit ends. The law does not require an injured person to accept an inappropriate care model simply because it is cheaper. It does require a claim built on evidence rather than assumptions.

About the Author

Lane Foster is an Ontario personal injury lawyer and the founder of Foster Injury Law. He represents injured people in serious personal injury and car accident claims across Ontario, including claims involving cost of future care, future income loss and long-term financial consequences of injury.

Authorities Referenced

Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 — Supreme Court of Canada authority addressing future care damages for a catastrophically injured plaintiff, including a home-care model rather than a cheaper institutional alternative where the evidence supported that care.

Schrump v. Koot, 1977 CanLII 1332 (ON CA) — Ontario Court of Appeal authority concerning future loss where there is a reasonable chance that the loss or damage will occur.

Graham v. Rourke, 1990 CanLII 7005 (ON CA) — Ontario Court of Appeal authority addressing compensation for a real and substantial risk of future pecuniary loss.

Higashi v. Chiarot, 2021 ONSC 8201 — Ontario Superior Court decision stating the future-care formulation requiring a real and substantial risk, medical justification, a fair and moderate award and reasonable necessity having regard to personal circumstances.

Graul v. Kansal, 2022 ONSC 1958 — Ontario Superior Court decision applying the Higashi formulation and distinguishing evidence used to determine the plaintiff’s care needs from life care planning evidence accepted for the cost of items.

Krangle v. Brisco, 2002 SCC 9 — Supreme Court of Canada decision addressing the predictive nature of future care damages and the need to assess future care once and for all despite uncertainty.

Marcoccia v. Ford Credit Canada Limited, 2009 ONCA 317 — Ontario Court of Appeal decision upholding a jury future-care award of $13,952,064 for a young plaintiff with severe brain injuries where the care model was supported by the evidence.

Ontario Insurance Act, R.S.O. 1990, c. I.8, s. 267.8 — statutory provision addressing specified collateral-benefit deductions and future-benefit trust or assignment issues in Ontario motor vehicle tort claims.

Rule 53.09 of Ontario’s Rules of Civil Procedure — rule governing the discount-rate treatment of future pecuniary damage awards.