Edward V. Bergeron

The plaintiff was injured in a motor vehicle accident for which the defendants admitted liability.

The trial proceeded by judge alone to determine whether the plaintiff's injuries met the statutory threshold and to assess damages.

The court found that the plaintiff sustained a permanent serious impairment of an important physical, mental, or psychological function, specifically chronic widespread pain, mild neurocognitive disorder, and psychological symptoms.

The court dismissed the defendants' threshold motion and awarded the plaintiff $100,000 in general damages, $38,371 for past income loss, $201,294.72 for housekeeping, and various amounts for future care costs and out-of-pocket expenses, with future income loss to be calculated based on a projected retirement date.

Following a 17-day trial resulting in a net judgment of approximately $472,000 for the plaintiffs, the court assessed costs.

The plaintiffs sought over $445,000 in fees and disbursements.

The court reduced the senior counsel's hourly rate, applied a 60% partial indemnity rate, and deducted amounts for unsupported time and disbursements.

The court declined the defendants' request to impose a $40,000 remedial penalty on the plaintiffs for refusing to mediate, noting such penalties should be proportionate to a party's financial strength.

Costs were fixed at $204,811.50 for fees and $42,545.30 for disbursements, plus HST.

Following a jury verdict in a personal injury action arising from a motor vehicle collision involving a cyclist, the court addressed post-verdict issues including the statutory threshold for recovery of non-pecuniary damages, the applicable statutory deductible, and the appropriate rate of pre‑judgment interest.

The court found that the injured plaintiff established a permanent serious impairment of an important physical function under the Insurance Act threshold.

The court further held that the increased statutory deductible introduced by O. Reg. 221/15 applied to pending actions, characterizing the deductible as procedural in nature and applicable to quantification of damages.

However, the court concluded that entitlement to and quantification of pre‑judgment interest are substantive matters and therefore the amended Insurance Act provisions did not apply retrospectively.

Pre‑judgment interest was therefore calculated under Rule 53.10 until December 31, 2014 and under s. 128(1) of the Courts of Justice Act thereafter.

The defendant moved for leave to appeal an order dismissing his motion for summary judgment.

The underlying action involved a personal injury claim arising from a motor vehicle accident, which the defendant argued was barred by cause of action estoppel because the plaintiff's insurer had previously obtained a consent judgment for property damage in a subrogated action.

The court found conflicting decisions in Ontario and Alberta regarding whether a single wrong can generate more than one cause of action in these circumstances.

Leave to appeal to the Divisional Court was granted to definitively address the issue.