• Statutory Deductible Significantly Reduces Jury Award in Recent Post-Trial Ruling
  • May 11, 2018 | Author: T. Kirk Boyd
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • On April 4, 2018, the Ontario Superior Court released a post-trial ruling in A.B. v. Waite, 2018 ONSC 2151. The Court reduced the jury verdict of $118,371 for general damages and past loss of income to $5,760.

    Background

    The plaintiff suffered a whiplash injury and was absent from work for several weeks following what the Court described as “a relatively minor rear end collision” in February 2009. The main issue in dispute was whether the plaintiff’s chronic pain condition resulted from the motor vehicle accident.

    After approximately three weeks of trial, the jury returned a verdict and awarded $42,500 for general damages, $76,121 for lost income prior to trial, and $0 for loss of future income. The Court noted that it was evident from the decision that the jury had accepted the arguments advanced by the defence.

    General Damages

    The Court noted that pre-judgment interest is to be calculated after the statutory deductible has been applied to the general damages award. Citing the Court of Appeal decision of El-Khodr v. Lackie, the Court held that if an accident occurred after November 1, 1996, general damages awards (made in 2018) which fail to exceed $126,610.07 are subject to the statutory reduction of $37,983.33. This is the case regardless of the date of the accident or when the action commenced.

    The Court noted that “the pre-judgment interest rate for non-pecuniary damages in motor vehicle cases is the ordinary pre-judgment interest rate under s. 128(1) of the Courts of Justice Act and not the rate for non-pecuniary loss under s. 128(2) and the Rules of Civil Procedure,” although the Court maintains its jurisdiction to award a different interest rate under s. 130. The Court chose to exercise its discretion and assessed a rate of four per cent per year. In doing so, the Court considered the length of time the action had been before the court, the fact that the action was supposed to proceed to trial in 2016 when the law was unsettled, and the overall circumstances of the case.

    As a result of the reduction for the statutory deductible, the net general damages award totalled $4,266.67 ($5,760 with pre-judgment interest).

    Past Loss of Income

    On the issue of past loss of income, due to the Court’s determination that the defendants were entitled to $76,200 in collateral benefits credits against the amount awarded by the jury, the award was reduced to zero, as the credits exceeded the sum of the jury award. Specifically, credits were provided for Income Replacement Benefits, LTD monies and the income earned by the plaintiff in the first year after the accident.

    Conclusion

    The Court stated that the outcome was “disastrous” for the plaintiff and would “only have been worse had [it] granted the threshold motion.” Notably, the Court commented that the outcome illustrated the legislative intention for only the most significant tort claims not be eliminated and “injured motorists be largely confined to claiming no fault benefits under their own insurance policies.” Moreover, this case provides an example of “how annual indexing of the monetary threshold for unreduced general damages and annual indexing of the deductible” may, at first glance, result in unreduced general damages being mostly unattainable. Interestingly, the Court noted that over the past several years, jury awards of general damages greater than $130,000.00 are the exception in this jurisdiction.

    Upcoming Cases

    As noted above, reference was made to the Court of Appeal’s decision El-Khodr v. Lackie, which is the subject of a leave to appeal application before the Supreme Court, as well as the upcoming five-judge Court of Appeal panel in Cadieux v. Saywell. A further alert will be provided upon the release of the decisions included above.