Brian M. Yung

Following a nine-day jury trial where no damages were awarded to the plaintiffs for injuries sustained in a motor vehicle accident, the court ruled on the threshold issue and costs.

The jury found the accident did not cause or contribute to the plaintiffs' ongoing pain and impairments.

The court, granting the defendants' motion, determined that the plaintiffs' claims for non-pecuniary loss were barred under section 267.5(5) of the Insurance Act, as their injuries did not meet the "permanent serious impairment of an important physical, mental or psychological function" exception.

The court emphasized that the jury's finding on causation was binding.

Costs were awarded to the defendants on a partial indemnity basis, totaling $111,614.65, despite the plaintiffs' adverse cost policy and financial hardship claims, due to their failure to make an offer to settle.

The plaintiff, Ms. Emmanuel, sought general damages for injuries sustained in a motor vehicle accident.

A jury found her 75% at fault but awarded general damages and Family Law Act damages.

The court then conducted a threshold analysis under the Insurance Act to determine if Ms. Emmanuel's injuries constituted a permanent serious impairment of an important physical, mental, or psychological function.

The court found insufficient objective medical evidence to support permanence of physical injuries and no sufficient evidence for psychological injuries beyond 2017, especially considering her post-accident activities and lack of consistent treatment.

Consequently, the court dismissed the action, finding that Ms. Emmanuel did not meet the statutory threshold for non-pecuniary damages.

The plaintiff moved to amend her statement of claim to reduce damages to $200,000, aiming to transfer the action to Rule 76 (simplified procedure) and strike the defendants' jury notice.

The defendants consented to the amendment but opposed the transfer and striking of the jury notice, arguing their right to a civil jury trial was a substantive right protected by transitional provisions in the Courts of Justice Act and Rules of Civil Procedure.

The court dismissed the plaintiff's motion to strike the jury notice and transfer the action to Rule 76, holding that the legislative amendments did not retrospectively eliminate the right to a jury trial for notices delivered before January 1, 2020.

The plaintiff brought a motion seeking a pre-trial interpretation of Section 267.5 of the Insurance Act, specifically the phrase "without regard to" in s. 267.5(7)(1), to require the trial judge to inform the jury about statutory deductibles applicable to general damages awards in motor vehicle accident actions.

The motion, brought under Rules 21 and 22 of the Rules of Civil Procedure, was dismissed for lack of jurisdiction.

The court found that the issue of jury knowledge of deductibles was not a matter of law in the pleadings that would dispose of the action, substantially shorten the trial, or result in significant cost savings, nor was there an agreed-upon special case under Rule 22.

Following the dismissal of the plaintiff’s motion to amend a statement of claim to substitute named defendants for John/Jane Doe defendants, the court addressed costs between the plaintiff and one proposed defendant.

The proposed defendant sought partial indemnity costs after successfully opposing the motion.

The plaintiff challenged several components of the claimed costs, including preparation of a factum, travel time, and the total hours claimed, and argued that the interests of the proposed defendants were identical such that separate costs should not be awarded.

The court rejected those submissions, finding the proposed defendants’ interests were not the same and that separate representation was appropriate.

The court fixed fair and reasonable costs payable by the plaintiff.