Costs of $177,950 for Occupier’s Liability Damages Award of $177,373

Posted on December 14, 2007 by Stephen Cavanagh

In Singer v. Hamilton, Mr. Justice William J. Festereyga had to assess costs following the 15-day trial of an occupier’s liability case. He had assessed damages and interest at $177,373.55. His decision reaffirms that even awards of substantial indemnity costs are subject to the litmus test of “reasonableness”.

The plaintiffs had served an offer to settle in June, 2006, for what was apparently an amount considerably less than the award at trial. Accordingly, the plaintiffs were entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The plaintiffs claimed costs totalling $258,475.43. The defence proposed a figure of $72,848.95. 

Justice Festereyga noted that “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant” and concluded that, “the amount claimed for costs in this proceeding exceeds, to a great extent, the amount awarded by me in a non-jury trial. I find on this basis that the amount of the costs claimed is unreasonable.”

His Honour did not think that the matter had been particularly complex. He concluded that an excessive amount of time had been spent and that there had been duplication as a result of the number of lawyers who had worked on the file.

After paring down the various components of the plaintiffs’ bill of costs, he arrived at fees of $124,001.19 and disbursements of $53,949.74, for a total of $177,950.93 (within $600 of the award of damages).

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Court Holds That Defendant Entitled to See Complete Copies of Affidavits Filed on Motion for Court Approval of Settlement

Posted on December 14, 2007 by Stephen Cavanagh

Burns Estate v. Falloon addressed an issue that was raised at the recent Montebello Civil Litigation conference: on a motion for approval of the settlement of a claim by a person under a disability, is the defence entitled to be served with unexpurgated versions of the affidavits filed in support of the settlement? Madam Justice Helen M. Pierce has answered that question in the affirmative.

(This decision was released in August but we didn’t post anything about it at the time. Thanks to Alex Demeo for drawing it to our attention.)

The claim arose out of a motor vehicle accident. The plaintiff was a minor. Apparently, the expert retained by the plaintiff could not determine the cause of the car accident in which the plaintiff had been injured and as a result, the negotiated settlement was that the action would be dismissed without costs.

Counsel for the plaintiffs sought leave, under Rule 37.07, to dispense with service of the motion materials on the defendant’s solicitor. (Service would otherwise be required under Rule 7.08(4).)

The concern on the part of the litigation guardian (the injured minor’s mother) was that “it would be highly prejudicial to her if she discloses information to the defendant based on the advice her solicitor gave her concerning settlement of the action and the instructions that she gave him.” The litigation guardian’s affidavit went on to say,  “I’m also concerned that the solicitor for the defendant will thereafter try to obtain other confidential information and documentation exchanged between me and my solicitor in connection with this matter.”

Here, the plaintiffs’ solictior had served an edited version of the motion materials on the defence. It was alleged, on behalf of the plaintiffs, that those passages were subject to solicitor-client privilege and that the court’s copy should be sealed.

Justice Pierce rejected all of the plaintiffs’ arguments. She held that the defence is entitled to be served with a true copy of the materials filed in support of the motion for court approval. She accepted the defence submission, that “there is no privilege in a communication to the court mandated by law regarding an infant settlement”. Her Honour ruled that “the policy of the protection of the interests of children and other persons under disability requires full and frank disclosure of the merits of a settlement. Necessarily this calls for a candid opinion by counsel. As well, the litigation guardian must understand the reasons for settlement and accept them.”

She also refused to seal the court file, holding that “Citizens are more likely to have confidence in a justice system that operates openly and transparently. In the broadest terms, the public has an interest in knowing that the court supervises settlements of persons under disability and the factual and legal basis upon which this occurs. When the courts operate in a secretive manner, members of the public may rightly lose confidence in the administration of justice.”

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C.A. Dismisses Appeal from Jury’s Causation Finding in MVA Case

Posted on December 10, 2007 by Stephen Cavanagh

Charge of Sproat J.pdf

[UPDATE: Mr. Justice Sproat’s charge to the jury on the issue of causation has been added to this post in the link immediately above. Thanks to David Cheifetz, who received a copy of the charge from plaintiff’s counsel, Alf Kwinter.]

Campbell v. Julta is an interesting illustration of the often confusing interplay between judge and jury in a motor vehicle “threshold” case.

At trial before Mr. Justice John R. Sproat and a jury, the plaintiff claimed to have suffered from chronic pain and fibromyalgia following a 1999 car accident. After the jury had retired to consider its verdict, Justice Sproat ruled on the issue of whether or not the plaintiff’s injuries met the Insurance Act threshold. He held that they did. He noted that while the plaintiff had had some pre-existing complaints, none of these had appreciably interefered with her life. From 1999 to mid-2002, the plaintiff had been, he said, “in substantial pain and impaired in her physical abilities”. During that period, she had been fired from two jobs and Justice Sproat concluded that these events had been related to injuries suffered in the car accident.

His Honour concluded his dismissal of the defendant’s threshold motion by addressing causation:

[15]       Causation need not be established with scientific precision and it is essentially a practical question of fact which can best be answered by ordinary common sense.  Practicality and common sense support my conclusion that the August 1999 accident caused or contributed to Ms. Campbell’s condition.

[16]         Having found Ms. Campbell to be credible, and having regard to my findings as to the causal connection between the August 1999 accident and her current condition, I need say relatively little in support of my conclusion that she sustained a permanent, serious impairment of an important physical, mental or psychological function. 

[17]         In this regard the evidence is that she continues to suffer chronic pain for which she is taking a powerful narcotic medication.  She is only able to work 1-2 days a week in a retail sales position at $12.00/hour.  She has lost her previous active, athletic and social life.  Further, there is no evidence of any reasonable prospect of improvement.  It would be purely speculative to think that she might be one of the rare individuals, referred to by Dr. Saul, who would recover quickly upon the completion of stressful legal proceedings.

However, the jury took a different view of the case. It was asked to decide whether the accident had materially contributed to the plaintff’s condition as of the time of trial and answered in the negative. (We have been advised that the jury did award non-pecuniary damages of $45,000 and about $3,000 for income loss. The range of non-pecuniary damages suggested by counsel for the plaintiff was $125,000 to $175,000, while the defence had suggested a range of $35,000 to $45,000.)

Today, the Court of Appeal dismissed the plaintiff’s appeal.

(The opening sentence of the Court’s reasons says that the plaintiff had appealed “the jury’s damages award in a civil case involving personal injuries arising out of a motor vehicle accident”. The jury did award some damages, as mentioned above. The issue addressed in today’s Court of Appeal ruling was the jury’s decision with respect to causation.  Presumably, the connection to damages is that if the jury had found that the plaintiff’s condition as of the time of trial had been caused by the accident, the award would have been considerably higher.)

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Rule 49 Puzzle

Posted on December 7, 2007 by Stephen Cavanagh

Chaston v. Rathour shows that it can be tricky to figure out the costs consequences of offers to settle under Rule 49 of the Rules of Civil Procedure in cases involving multiple defendants.

(Actually, the reasons of Mr. Justice David S. Crane do not mention Rule 49 at all, but it appears that his decision was based, in large part, on his interpretation of that rule, which deals with “Offers to Settle”. See the comment from David Cheifetz below: David discusses the possible theoretical underpinnings of the ruling.)

In the action, there was one plaintiff (“P”) and, effectively, two defendants (“D1” and “D2”). The action had proceeded to trial before a jury and Mr. Justice Crane. The reasons for judgment indicate that it was a negligence case of some sort. The defendants had crossclaimed against each other for contribution or indemnity.

All three parties had made offers to settle. The two defendants had made their offers to the plaintiff, each for what he thought was his own proportionate share of the plaintiff’s damages. The plaintiff made her offer to the two defendants, for the total amount of her claim. Justice Crane then had to decide how costs should be awarded, in light of the various offers.

At trial, the jury apportioned liability between D1 (25%) and D2 (75%) and also assessed P’s damages. When the dust settled, the combined amount of the offers that had been made by D1 and D2 was more than P’s damages, as found by the jury. The jury’s award was less than P’s offer to D1 and D2.

D1’s offer was for an amount greater than his share (25%) of P’s damages. D2’s offer was for a sum less than his 75% share.

D1 and D2 apparently did not make any offers to each other.

Against this background, Justice Crane made the following disposition of costs. Our comments about each part of the ruling appear in red.

  1. D1 and D2 were ordered to pay P her partial indemnity costs to the date of the earlier of the two defence offers (D1’s), apportioned 25%-75% between D1 and D2.

    Rule 49.11(b)(i) makes it clear that the costs consequences of Rule 49 do not apply to offers made to the plaintiff by one of two or more defendants, unless “the offer is an offer to settle the plaintiff’s claim against all the defendants and to pay the costs of any defendant who does not join in making the offer”. There is no indication in Justice Crane’s reasons that this condition was met by the offers of either D1 or D2, so the offers, considered separately or together, should not trigger costs consequences under Rule 49.

    Even if it could be said that the two defence offers, taken together, should be treated as one “defence” offer to settle that the plaintiff should have accepted, it is not clear why P should be penalized in costs from the date of the earlier of the two defence offers. According to the judgment, each of D1 and D2 had made offers to P but neither offer, on its own, exceeded P’s award from the jury. Thus, it could not be said, with hindsight, that P should have accepted D1’s offer (the first of the two defence offers): P’s eventual recovery exceeded that offer. Even if it could be argued that P should have accepted the two defence offers because their total was greater than the amount of the judgment (which we don’t think it can), that would only be true as of the date that the second of the two defence offers had been made. Thus, we don’t see why P would be denied costs after the date of the second of the two defence offers, let alone the date of the first.

  2. It was ordered that D1 would pay no further costs to P after the date of his offer. Again, it does not appear that D1’s offer complied with Rule 49.11(b)(i) and therefore, it should not have engaged any costs consequences. 
  3. D1 was to receive partial indemnity costs from the date of his offer. (See below.) 
  4. D2 was ordered to pay to P 75% of P’s partial indemnity costs from the date of D1’s offer to settle. The net result was that D2 had to pay 75% of P’s partial indemnity costs throughout. We think that this was the correct disposition. What was not correct, in our view, was P being denied the other 25% of her partial indemnity costs from the date of D1’s offer and D1 not being jointly and severally liable with D2 for the plaintiff’s partial indemnity costs. 

Justice Crane said that on receipt of D1’s offer, P “had to consider acceptance, as this defendant’s contribution to the claim”. But that is not what Rule 49 says. Where defendants are alleged to be jointly and severally liable for a wrong done to the plaintiff, Rule 49 does not force the plaintiff to assess each defendant’s offer in relation to that defendant’s potential share of the overall liability. Section 1 of the Negligence Act provides that “where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence” and Rule 49.11 reflects this wording (often referred to as “the 1% rule”), by only creating costs consequences for plaintiffs where a defence offer is to pay the entire claim and to pay the costs of any defendant who does not join in the offer. That was not the case here.

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C.A. Says Auto Insurer Can Question Insured Under Statutory Condition and Can Examine Him for Discovery

Posted on December 5, 2007 by Stephen Cavanagh

In Baig v. The Guarantee Company of North America, the Court of Appeal allowed an appeal from a decision of Justice Gordon, in which he had held that an auto insurer could not require its insured to submit to an examination under oath pursuant to a statutory condition once litigation had begun. The motions judge had been of the view that the right to an examination under oath ended with the litigation because of the availability of examinations for discovery. In this case, which involved a claim for damage to the plaintiff’s BMW, Justice Gordon had also held that the insurer was not entitled to question the plaintiff about the valuation of his vehicle. Finally, he had dismissed the insurer’s counterclaim against appraisers of the vehicle.

The Court of Appeal reversed all three findings. It held that an insured cannot avoid having to submit to an examination under oath under statutory condition 6(4) of the policy “by the simple expedient of commencing an action”. It noted that “Redundancy can be avoided because the court, in controlling its own procedures, is able to consider questions that have already been asked and answered on a statutory examination improper on a subsequent examination for discovery. The fact that an insurer has the right to a statutory examination and an examination for discovery does not mean the insured must answer the same questions twice.”

The Court also held that on its examination of its insured, the insurer was entitled to question him about the appraisal of the BMW. It noted that the insurer had taken the position that that appraisal had been fraudulently obtained and so, the questions were relevant:

If the question is relevant to the determination of GCNA’s liability at trial, I fail to understand how it would not be relevant to GCNA’s decision whether or not to pay the claim. The purpose of the statutory examination is to provide GCNA with the opportunity to examine the insured in regard to the matters that might properly affect its decision whether or not to pay the claim.

Finally, the Court overturned the motions judge’s dismissal of Guarantee’s counterclaim against the appraisers who had done the valuation on behalf of the insured. It concluded that the appraisers’ failure to tender evidence that there was no genuine issue for trial was “fatal to their motion”.

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C.A. Says Go-Kart in Pineland Amusements Is Not an “Automobile”

Posted on December 5, 2007 by Stephen Cavanagh

go-kart.jpg Today, the Court of Appeal released its decision in Adams v. Pineland Amusements Ltd. The first line of the decision sums up the ruling: “This appeal decides that a go-kart operated on a private track is not an ‘automobile’ within the meaning of the standard Ontario automobile insurance contract.”

In the decision appealed from, the plaintiff had been injured while operating a go-kart on a private track. He alleged that he had lost control of his go-kart after colliding with another go-kart being driven by his father. He sued both his father and the operator of the go-kart track. The father, in turn, joined his automobile insurer in the suit, claiming that it insured him against his son’s claim.

On a motion by the insurer, Kingsway General Insurance Company, Mr. Justice Roydon Kealey held in favour of the father and ruled that Kingsway owed a duty to defend. He determined that a go-kart operated on a private track was an “automobile” within the meaning of the Ontario Insurance Act and that accordingly, liability coverage was available for the go-kart driver under the latter’s auto policy. The basis of Justice Kealey’s ruling was that the Compulsory Automobile Insurance Act invokes the definition of “motor vehicles” contained in the Highway Traffic Act. The latter definition is worded broadly enough to include a go-kart. Although it would not be lawful to operate a go-kart on a highway, it is physically possible to do so. Thus, Justice Kealey concluded that if operated on a highway, a go-kart would have to be insured and that therefore, it was an “automobile” for purposes of the Insurance Act.

The Court of Appeal overturned the decision. Kingsway had argued that because a go-kart could never be driven lawfully on a highway, the Compulsory Automobile Insurance Act should be interpreted as not applying to it. However, the Court of Appeal was not prepared to go this far.

Instead, it based its decision on Copley v. Kerr Farms Ltd., one of its own decisions from 2002. In that case, the question was whether a tomato wagon was an “automobile” for purposes of the Insurance Act. The Court had found that although it was possible to take a tomato wagon on the highway, the accident in this case had occurred in a farmer’s field and that “there was no requirement for the defendant to have [the tomato wagon] insured ‘at the time and place where the accident occurred’.” Thus, the question was not whether the go-kart would have been an “automobile” for insurance purposes if the accident had occurred on a highway, but whether it had to be insured at the time and in the circumstances of the actual accident that had taken place. The Court held that it did not.

 

 

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Court Rejects Discretionary Costs Premium and Reimbursement for “Carrying Costs” of Unpaid Fees and Disbursements

Posted on December 4, 2007 by Stephen Cavanagh

In Marcoccia v. Ford Credit Canada Limited, Mr. Justice Patrick Moore has written the latest chapter in one of Canada’s largest personal injury cases. In the course of doing so, he has made some instructive points about determining costs as between litigants.

This decision dealt with the costs payable by the defendant Ford Credit Canada Limited to the plaintiff, Robert Marcoccia. His Honour awarded costs totalling $892,464.44, inclusive of fees (partial and substantial indemnity), disbursements and GST. The plaintiff had sought $1,459,489.00 while the defendant had proposed a figure of $438,178.93. Thus, the award was about 61% of what the plaintiff had requested.

Justice Moore disallowed entirely a “discretionary costs premium” and an amount to compensate for the carrying costs of unpaid fees and disbursements over the life of the case. The plaintiff had sought a total of $556,458 for these two items. 

He also made it clear that a defendant arguing that the plaintiff’s costs exceed what the defendant could reasonably expect should be prepared to lead evidence of its expectations, including evidence as to its own legal fees and disbursements.

The Accident and Previous Proceedings

The action arose out of a motor vehicle accident that took place on June 8, 2000. The plaintiff, Robert Marcoccia was turning left at an intersection and his car was struck by a vehicle that was driving straight through. Robert, who had just turned 20, suffered a catastrophic brain injury. At trial before a jury and Justice Moore, liability was apportioned 61% to the defendant driver and 39% to the other driver.

The driver had had liability insurance with limits of $1 million. A partial settlement of the case was reached on October 11, 2003, which saw the liability limits of the defendant’s primary insurance policy being paid to the plaintiff and a settlement reached with respect to the plaintiff’s costs to that date. The partial settlement required court approval and was the subject of an earlier posting on our blawg. That decision was the first of a series of recent cases in which judges have criticized the sufficiency of the material placed before the court to enable it to approve the settlement (see also our posts about Rivera v. Leblond and Lau v. Bloomfield.

After the partial settlement, the insurer of the lessor of the vehicle (Ford Credit Canada Ltd.) assumed the defence of the action.

Result of Trial

The jury and Justice Moore assessed the plaintiff’s damages at $16,915,998. When reduced for contributory negligence, the net damages were $10,366.529.98.

Prior to the trial, the plaintiff had made an offer to settle which appears to have been for $4 million. The offer remained open during the trial but was ultimately withdrawn.

The defendant made an offer of $1.25 million all-inclusive during the trial. 

It was conceded on the costs hearing that the plaintiff was entitled to partial indemnity costs from October 12, 2006 to January 5, 2007 and substantial indemnity costs thereafter. 

Previous Ruling on Contingency Fee

At an earlier hearing, Ford Credit sought a ruling granting it status to participate in the hearing to approve the contingency fee that the plaintiff’s solicitor proposed to charge. Justice Moore refused to grant status to Ford Credit. He said: “Ford seeks to entwine the two obligations together but the fact that some of the latter may ultimately be funded by money paid by Ford to satisfy the judgment is not sufficient to persuade this court that Ford should be considered a necessary or proper party entitled to make submissions at any hearing into fee and disbursements issues between the plaintiff and his counsel.”

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Court Approves Contingency Fee of $4.2 Million in Birth Injury Case

Posted on November 27, 2007 by Stephen Cavanagh

UPDATE: CanLII now has an active link to the reasons in this case. You can access it here. Accordingly, we have removed the PDF link that formerly appeared as part of this post.

Mr. Justice Robert Smith has released a significant decision in which he has considered the issue of contingency fees charged to persons under a legal disability. He approved legal fees of $4.2 million in a medical malpractice case that settled for about $12.5 million. His Honour held that while it is up to the court to approve contingency fee arrangements with disabled plaintiffs, “substantial weight” should be given to such agreements where they have been entered into by a sophisticated party who considered and weighed the risks involved and acted in the best interests of the child.

In this case, Re Cogan, well-known Ottawa lawyer J. Arthur Cogan, Q.C. took over a medical malpractice claim that had been languishing for five years. The minor plaintiff (referred to in the decision as “M.F.”) suffered from cerebral palsy and other severely disabling conditions, allegedly as a result of negligence of the obstetrician and nurses attending at his birth. When Mr. Cogan assumed the plaintiffs’ case, they were in default on five outstanding case management orders for production of an expert’s report and the action was on the verge of being dismissed. On the eve of trial, the action settled for $12,543,750 in damages. On this motion, Mr. Cogan sought court approval of the contingency fee agreement into which he had entered with the child’s litigation guardian (the child’s mother). Pursuant to that agreement, Mr. Cogan had agreed to fund disbursements for expert witnesses. He had also agreed that he would not be paid if the action was unsuccessful. If the action did succeed, he was to receive one third (33 ⅓) percent of the total amount recovered.

At the request of Mr. Justice Smith, the Office of the Children’s Lawyer had made submissions with respect to the fee sought to be charged. Counsel for the Office of the Children’s Lawyer submitted that Mr. Cogan should receive a fee based on his full hourly rate for the time spent (this amounted to $540,987.00) plus a premium of $1 million. As Justice Smith noted, the Office of the Children’s Lawyer took the position that the contingency fee arrangement entered into with the litigation guardian was unenforceable as against the person under a disability:

The Children’s Lawyer approaches the matter as if no contingency fee agreement had been agreed upon, because the agreement is not binding on the child. Mr. Cogan, on the other hand, submits that I should approve his fees in accordance with the contingency fee agreement, agreed upon by the child’s litigation guardian, unless the litigation guardian has made a mistake or acted unreasonably and as a result have disregarded the child’s best interests.

Resolution of this issue was key to His Honour’s decision.

As has been made clear in cases like Rivera v. Leblond, Marcoccia v. Gill and Lau v. Bloomfield, the Superior Court has recently taken a much more activist role in the approval of settlements involving persons under a disability. The paramount concern of the court is, what is in the best interest of the disabled person. In this case, the settlement itself had already received court approval. (We are advised that that approval was also done by Justice Smith.). On this motion, it was only the lawyer’s fees that were in issue. Still, those fees will come out of the settlement funds, so Justice Smith focused his inquiry on whether payment of the contingency fee sought by Mr. Cogan would deplete, to an unacceptable level, the funds available to meet the needs of M.F., the injured child.

His Honour undertook a detailed analysis of the cost of M.F.’s future care. (He would presumably have been familiar with this evidence as a result of having approved the settlement itself.)

 He noted that about $5.3 million had been structured and another $2.2 million was to be held in trust and invested for future needs. He concluded that the parents (both of whom were chartered accountants) had “arranged an excellent financial plan to meet M.F.’s future care needs”.

Justice Smith then looked at the factors set out in the Court of Appeal’s 1985 decision in Cohen v. Kealey & Blaney, with respect to what constitutes a fair and reasonable fee for a solicitor. He noted that Cohen was decided before contingency fees were permitted in Ontario. As a result, he concluded that the Law Society’s Rule 2.08(3) “should be given more weight than the traditional factors which do not deal with a contingency fee agreement”.

His Honour concluded that Mr. Cogan had achieved an excellent result for his client. He pointed to the following:

  • Mr. Cogan had assumed great financial risk in relation to experts’ fees and his own time (the total amount of both was estimated to be over $1 million).
  • When he took over the case, there was a substantial risk of failure on the issue of causation, since only 2% of cerebral palsy cases can be attributed to inappropriate obstetrical care.
  • The reasonable expectation of the plaintiffs was that they would recover nothing or up to $4 million to $6 million. The latter range is based on prior decided cases involving cerebral palsy and the opinion expressed by the case management Master at the settlement conference. As Justice Smith noted, the actual recovery was approximately double the maximum amount that the plaintiffs could reasonably have expected to recover.

With respect to the fairness of the contingency fee agreement itself, Justice Smith was influenced by the fact that the parents were both chartered accountants. He held that they had freely entered into the agreement and that they had understood it.

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Court Holds That Plaintiff’s Rule 49 Offer Must Take Into Account Future Accident Benefits

Posted on November 26, 2007 by Stephen Cavanagh

Abel v. Hamelin Costs Reasons

Our post about the Montebello Civil Litigation Conference contained a brief discussion of a recent costs decision by Mr. Justice Charles Hackland in Abel v. Hamelin. We now have a copy of the reasons and a PDF is attached to this post. The decision raises some interesting questions about the interaction between tort damages and first-party statutory accident benefits, in the automobile insurance context.

The action was a personal injury claim arising out of a motor vehicle accident. Following a 15-day trial, damages were assessed by Justice Hackland at $344,238.48.

Prior to trial, the plaintiff had made three settlement offers: one for $250,000 in 2003, another for $400,000 in 2005 and a third for $349,735.58 plus interest and costs in December, 2006, two months before the commencement of the trial.

The defendant had offered $330,000 plus interest and costs and included, as a term of the offer, a requirement that it receive “a full assignment to the defendant of the plaintiff’s future IRBs”. (We are told that the insurer in question was Belair and that it was both the tort and AB insurer.) The plaintiff’s December offer dealt only with the tort claim and was silent with respect to the accident benefits claim.

In ruling on the costs issue, Justice Hackland began by adding the $15,000 Insurance Act deductible to the assessed damages of $344,735.58. In doing so, he was following the Court of Appeal’s recent decision in Rider v. Dydyk. He said that “on that basis, the plaintiff’s recovery for Rule 49 purposes was actually $359,238.48 which exceeds her offer by $9,502.90 and therefore entitles her to consideration for a substantial indemnity award from the date of her offer”.

Justice Hackland then went on to say the following:

[A]s noted above, the trial judgment requires a set off or assignment of the plaintiff’s future IRB’s, the value of which an actuary has calculated to be $166,938.00. Therefore the plaintiff’s net recovery is $344,238.48 + $15,000.00 – $166,938.00 = $192,300.48. This sum is of course much less than the plaintiff’s December 1, 2006 offer to accept $349,735.58 with no assignment of IRB’s.

At trial, Justice Hackland had found that the plaintiff was entitled to damages for income loss to age 60, on the basis that she would have retired at that age and that it was, in any event, the average retirement age for female workers in Canada and for health care workers in particular.

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Report From Montebello (2007)

Posted on November 25, 2007 by Stephen Cavanagh

The 2007 edition of the Montebello Civil Litigation Conference has ended. Our Heather Williams is the conference co-chair and Susanne Sviergula is on the organizing committee.

The conference featured numerous visiting guests, each of whom lavished praise on the conference as the premiere civil litigation continuing education event in Ontario. The guests included Attorney-General Chris Bentley, former Associate Chief Justice Coulter Osborne, Law Society of Upper Canada Treasurer Gavin Mackenzie, Court of Appeal Justice Kathryn Feldman, Superior Court Justice Julie Thorburn, Ontario Bar Association Vice-President Jamie Trimble, CBA Second Vice-President Kevin Carroll, Q.C. and Superior Court Justice Paul Perell. They were joined by an assortment of judges and lawyers from the east region.

Karen McLaurin Retires

Although the conference was a resounding success, the attendees were saddened to hear, on Friday night, that long-time executive director of the County of Carleton Law Association Karen McLaurin, is retiring from the organization effective next March. Karen has served the members of the Association with great energy for 27 years and has been responsible for the organization of the Montebello Conference year in and year out. As Bill Simpson, Justice Chuck Hackland, Heather Williams and LSUC Bencher Tom Conway said in addresses to the conference-goers on Friday night, Karen will be greatly missed.

Coulter Osborne Speaks About Civil Justice Review

Former Associate Chief Justice Coulter A. Osborne addressed the conference on the second day. He spoke about his Civil Justice Reform Report, handed down last Thursday.

He said that in preparing his report, he had had to take into account Mark Twain’s observation that “I’m all for progress; it’s change I don’t like”. 

Trials—Good

Justice Osborne began by stating something that some might think runs counter to contemporary thinking: that having more trials is not necessarily indicative of systemic failure. In fact, he said that in a better world, we might have more trials but they would be shorter. (Mr. Justice Tim Ray had made similar comments on the first day of the conference, stressing that lawyers should not be condemned for taking cases to trial.)

Justice Osborne said, “Matters are settling now for the wrong reasons, one being the cost of pursuing the action to its conclusion. Brampton is a good example: the black hole of Ontario when it comes to delay. The problem is exacerbated by the position that the non-family civil justice system occupies. We’re squeezed between the constitutional imperatives of having criminal cases tried within a reasonable time and the social imperative of having family cases tried. There is a trial in Brampton set in November, 2006 where a trial date was assigned for April, 2010. That case has settled. I didn’t ask why but I can guess. They’ve solved the delay problem in Brampton by not scheduling trials at all because there’s a systemic embarrassment at the length of delay.” 

Juries

He said that some judges had advocated the abolition of trial by jury but that juries were “a unifying factor among the bar”, the majority of whom want to retain the system. He has recommended that juries not be used in simplified procedure cases (and he has recommended that the monetary limit for such cases be increased from $50,000 to $100,000).

Proportionality

Justice Osborne noted that many of his recommendations reflect the principle of “proportionality”. (The word appears 26 times in the report, in various contexts. One of these is costs, where Justice Osborne has recommended that proportionality be enshrined as the “overarching” principle.)

Small Claims Court

With respect to Small Claims Court, Justice Osborne said, “there are recommendations in the report for the increase in jurisdiction to $25,000. I recommend no change in the costs structure. Some lawyers will be disappointed; that’s the way it goes. There’s an ‘exceptional circumstances’ exception but ordinarily, costs are capped at $3,750. [15% of $25,000]”

(One member of the plaintiffs’ bar with whom we spoke did indeed voice unhappiness with this recommendation.) 

Simplified Procedure

Justice Osborne said that many lawyers in Toronto had wanted a more substantial increase in the simplified procedure limit, to as high as $250,000, and that he had considered recommending increases of different amounts for different regions. But ultimately, he decided that it was inadvisable to balkanize the province and has proposed that simplified procedure apply to actions in which the amount claimed is $100,000 or less.

Summary Judgment

Justice Osborne admitted that his former court (the Court of Appeal) is to blame for “the unfortunate experience that we’ve had with Rule 20”. Anecdotal evidence indicates, he said, that there are fewer summary judgment motions being brought (few practitioners would dispute this). In Justice Osborne’s opinion, it is imperative that cases in which there is no genuine prospect of success at trial be gotten out of the system, in a fair manner. He used the phrase “no genuine prospect of success at trial” advisedly; this is the standard used by British courts in motions for summary judgment. Justice Osborne has not recommended that it be adopted here. He recommends that the test be left as is (“no genuine issue for trial”) but has pressed for judges hearing these motions to be given greater powers.

Auto Insurance

Justice Osborne did not have enough time to discuss his report in detail. The last area that he discussed was one with which he is quite familiar (having authored a major study of motor vehicle accident compensation in 1987): automobile insurance. He spoke of “the bizarre situation we’re in with the verbal threshold”: “If you accept the need to control premiums, that’s fine, but if the $30,000 deductible is aimed at keeping small cases out of the system, what does the threshold change? Not much. If you look at jury cases, the trial judge charges the jury, the case is basically over and you start arguing whether it should have been there in the first place.”

In his report, he has suggested that FSCO consider what effect the threshold and deductible have had on accident compensation.

Court Approval of Settlements Affecting Persons Under Disabilities

Regular readers of our blawg will know that this year, the Superior Court has taken a much harder look at court approval of settlements. In the past, these settlements were often rubber-stamped (or close to it). But spearheaded by Justice Julie Thorburn in Rivera v. Leblond, judges in a series of rulings have become much more demanding in terms of the evidence that they require from counsel for the plaintiff. This includes various aspects of the settlement: legal fees being charged to the litigation guardian, whether the settlement is truly in the best interests of the disabled person, etc.

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Posted in Auto, Costs, Insurance News, Juries, Practice and Procedure | Comments Off on Report From Montebello (2007)