Insurers Continue Effort to Deprive Accident Victim of Legitimate Interest Owed Even After Losing Trial
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.
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.
On what date should prejudgment interest on the amount awarded for past income loss stop accumulating?
What is the applicable rate for prejudgment interest on the jury's award for non-pecuniary damages?
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?
What is the amount of costs to which the Plaintiff is entitled?
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.
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