Insurers Continue Effort to Deprive Accident Victim of Legitimate Interest Owed Even After Losing Trial

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Litigation of civil issues is a complex process which typically includes the pursuit of monetary claims for damages.

Civil litigation refers to the determination (or trial) of non-criminal actions, with the purpose of resolving a dispute between two or more individuals or groups. Civil cases are not entirely resolved during the trial, nor are they completely finished once the jury or judge makes a decision.

Civil actions require various pre-trial procedures, such as hearings, as well as post-trial actions. After the trial, there are legal documents and issues that remain to be finalized, particularly pertaining to costs and interest payments.

It is necessary for all parties to reach agreement on post-trial" issues, which sometimes requires the help of the trial judge, as occurred in the 2015 action of El-Khodr v. Lackie.

Case example

After being rear-ended by Mr. Raymond Lackie while driving, Mr. El-Khodr brought a suit against Mr. Lackie and Mr. John McPhail, the owner of the car Lackie was driving, for damages as a result of the catastrophic injuries he had suffered.

After a four-week trial ending in April 2015, the jury awarded Mr. El-Khodr $2,931,006 in damages, the majority of which was to pay for future care costs, but also included valuation for past and future loss of income. At the conclusion of the trial, both parties were instructed by the trial judge to provide written submissions for the costs they each accumulated during the trial.

However, in additional submissions, both parties expressed confusion about certain aspects of the ruling and sought direction from the judge. In particular, there was some disagreement between the parties on the calculation of prejudgement interest due to Mr. El-Khodr.

There were four specific issues that were under contention by the two parties.

  1. On what date should prejudgment interest on the amount awarded for past income loss stop accumulating?
  2. What is the applicable rate for prejudgment interest on the jury's award for non-pecuniary damages?
  3. Does the Court have jurisdiction to make an order with regard to the trust and assignment provisions of the Insurance Act, without an official notice of motion?
  4. What is the amount of costs to which the Plaintiff is entitled?

For the first issue, both parties agreed on the date that interest should begin accruing but differed on when it should end. The defendants argued that interest should stop accumulating on the date on which the accountant (who testified for Mr. El-Khodr) based his assessment for past loss income, which was March 30, 2015.

Justice Roccamo disagreed with this argument and instead ruled in Mr. El-Khodr's favor, concluding that interest should accumulate until the date the order was given at trial, which was April 30, 2015. Justice Roccamo referred to the Courts of Justice Act (CJA) in his ruling, which he noted, clearly states that the relevant date is the date of the order.

On January 1st 2015, Bill 15 came into effect amending the Insurance Act, R.S.O., 1990. c.I. with the addition of 258.3(8.1) which states that the established calculation for prejudgement interest no longer applies to damages for non-pecuniary loss. (Non-pecuniary refers to pain and suffering and loss of enjoyment of life.) Effectively, for general damages in motor vehicle accidents, the prejudgement interest rate was changed from 5% annually to the floating bank rate.

The key question to be answered for the second issue is whether or not the Bill 15 amendment is retroactive and procedural law, or is prejudgement interest substantive (meaning is it defined in statute)? For this determination, the judge examined the issue of retrospective application or, in other words, whether the above amendment would apply to the current case even though it came into effect after the jury's ruling had been made.

The defendants contended that the change is procedural and therefore retroactive in nature, while Mr. El-Khodr argued that the interest rate is statutory so the amendment does not apply. Citing the Ontario Court of Appeal decision in" Sommers v. Fournier, " Justice Roccamo ruled in Mr. El-Khodr's favor, noting that prejudgment interest for motor vehicle accidents is substantive in nature. 

As a result, Justice Roccamo concluded that Mr. El-Khodr was entitled to a 5% per annum interest rate. Accordingly, Mr. El-Khodr was awarded $89,167.81 in interest payments for almost 8 years, on the $225,000 he was awarded for pain and suffering.

With regard to the third issue, the two parties disagreed on whether or not it was up to the Court to decide which payments owed to the plaintiff should be held in a trust and also, how the trust should be distributed. The defendants argued that the Court has the jurisdiction to decide this question, while the plaintiff disagreed.

Justice Roccamo ruled in favour of the plaintiff, referring to the" Insurance Act" and" Arbitration Act; both Acts state that issues pertaining to the plaintiff's liability to make payments from money held in trust to the parties from whom damages were recovered must be handled through arbitration.

With regards to the issue of hearing the defendant's motion for the assignment of future collateral benefits without a formal notice, Justice Roccamo disagreed with the plaintiff and decided that a formal notice of motion was unnecessary from the defendant. Further, the defendant's written submission to both him and the plaintiff which clearly stated the defendant's question about the issue, was more than satisfactory.

As a result, Justice Roccamo proceeded to outline his orders with regard to future collateral benefits and clarify the issue for both parties. The two parties also disagreed on the amount of costs submitted by the plaintiff for the trial.

It was noted at trial that, in the calculation of costs unlike pre-judgement interest, the court can exercise significant discretion in the setting of costs to reward or discipline the opposing parties based on their conduct before and during the trial. Thus, costs are both procedural and a means for attaining justice.

The defendant argued that the costs requested by Mr. El-Khodr " exceeded what an opposing party would typically pay in the situation and also disagreed with some of the items claimed by the plaintiff during the discovery phase of the trial, such as, food, travel and beverages.

On this issue, Justice Roccamo once again ruled in Mr. El-Khodr's favor, concluding that his costs were reasonable (with a minor adjustment for his attorney's hourly rates), based on the fact that this case was complicated and required extensive expert evidence, and the amount of costs was proportionate to the total amount awarded. It was also noted that the defendants put a heavy burden on Mr. El-Khodr to prove his case and only admitted liability part way through the trial proceedings.

This case illustrates the complexity inherent in the calculation of damages and costs in a personal injury action.

The skilled team of personal injury lawyers at Gluckstein Lawyers well understand the personal injury claims process and applicable statutes, and will work diligently to successfully resolve your claim.

If you or a loved one has been injured in a motor vehicle accident, please do not hesitate to call or visit usLet us help you get the justice you deserve in this trying and difficult time.


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