Request for damages arose from services rendered to parties injured in motor vehicle accident
In a case involving compensation for caregiver and attendant care services out of settlements obtained in personal injury proceedings, the Ontario Court of Appeal affirmed the trial judge’s refusal to award punitive damages based on unproven legal timesheets and invoices.
Mr. Griva and Mrs. Griva, long-haul truckers, had a serious motor vehicle accident in Indiana, US, in January 2011. They brought personal injury actions and accepted settlements in their respective lawsuits.
Mr. Griva, asleep in the truck cab’s bunk at the time, received $1,849,967.10 for catastrophic injuries in the accident. Mrs. Griva, as the driver, received $90,334.98 for her modest injuries due to the incident.
Under a contract, Mr. Griva and Mrs. Griva agreed to pay Ms. Kovacevic a fixed monthly rate of $2,000 for attendant care services.
Under an alleged oral agreement that supplemented this contract, Mr. Griva and Mrs. Griva would pay her the amounts stated in invoices she provided for her services out of settlement funds from their personal injury litigation.
Ms. Kovacevic submitted voluminous timesheets and invoices for caregiver and attendant care services she had allegedly provided to Mr. Griva and Mrs. Griva, including:
- driving to appointments
- grocery shopping
- meal preparation and cooking
- helping with bathing, sleeping, and dressing
- managing financial matters and insurance
- translating to and from the Serbian language
- communicating with legal counsel on their personal injury proceedings
Ms. Kovacevic claimed general and punitive damages. For general damages, she submitted total invoices of $642,633.77 and sought payment of the balance of $576,133.77, given her admission that she had already received $66,500 for her services.
Ms. Kovacevic asked for $50,000 in punitive damages. She alleged reprehensible conduct on the part of Mr. Griva and Mrs. Griva.
Specifically, Ms. Kovacevic claimed that they took the settlement funds, which included compensation for caregiver and attendant care services, before fleeing to their native Serbia to avoid paying or settling her claims against them.
Ms. Kovacevic’s counsel added that Mr. Griva and Mrs. Griva acted egregiously and greedily to a mind-numbing extent, considering their substantial personal injury settlements.
Damages denied
On May 27, 2024, in Kovacevic v. Griva, 2024 ONSC 2979, Justice Janet E. Mills of the Ontario Superior Court of Justice entirely dismissed Ms. Kovacevic’s claims for general and punitive damages.
Regarding general damages, the trial judge accepted that Mr. Griva and Mrs. Griva retained Ms. Kovacevic to provide attendant care services from April 2013 to July 2016. However, the judge ruled that they had more than compensated Ms. Kovacevic for her services for around 39 months.
The judge considered Ms. Kovacevic’s uncontested evidence neither credible nor reliable. The judge found the timesheets and invoices exaggerated or fabricated, rather than genuinely reflective of her services to Mr. Griva and Mrs. Griva.
The judge determined that Ms. Kovacevic did not create the timesheets and invoices contemporaneously with the services rendered.
Regarding punitive damages, the judge held that Mr. Griva’s and Mrs. Griva’s refusal to pay exaggerated or fabricated invoices or settle Ms. Kovacevic’s claim was not an actionable wrong or high-handed, malicious, arbitrary, or reprehensible misconduct.
On appeal, Ms. Kovacevic alleged that:
- The trial judge failed to properly consider r. 52.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provided that a trial judge could allow a plaintiff to prove the case if the plaintiff was present at the trial while the defendants were absent
- The record showed that she had established her case, based on the invoices, timesheets, and evidence from Mr. Griva’s and Mrs. Griva’s insurance claims, which indicated that they had received additional amounts due to the invoices
Appeal rejected
Last Nov. 26, in Kovacevic v. Griva, 2025 ONCA 814, the Court of Appeal for Ontario dismissed Ms. Kovacevic’s appeal.
First, the appeal court determined that the trial judge had permitted Ms. Kovacevic to prove her claim pursuant to r. 52.01(2), which did not require the judge to find in her favour.
The appeal court also rejected Ms. Kovacevic’s second argument upon seeing no error in the judge’s analysis or conclusions.
The appeal court noted that the judge refused to consider clearly inadmissible evidence and, based on the record, clearly reasoned why the appellant had failed to establish an oral contract, its breach, and a corresponding loss.
