Dr. Bail

In this costs endorsement following a personal injury jury trial, the plaintiff sought enhanced costs based on a Rule 49 offer of $300,000 inclusive of interest plus costs.

The defendants argued that the future income loss award should be excluded from the judgment for offer-comparison purposes because of the trust and assignment regime under s. 267.8 of the Insurance Act.

The court rejected that submission, held the judgment remained more favourable than the offer, and awarded partial indemnity costs to the offer date and substantial indemnity costs thereafter.

Applying Rule 57.01 and proportionality principles, the court fixed fees at $240,000 plus applicable GST/HST and allowed disbursements of $124,013.46.

The applicant was injured in a motor vehicle accident and received caregiver benefits for over five years before the insurer terminated them.

She sought a continuation of the caregiver benefit and a non-earner benefit, claiming physical and psychological impairments prevented her from caring for her children and engaging in pre-accident activities.

The Arbitrator found that while the accident materially contributed to her psychological impairments, she exaggerated her physical complaints.

The Arbitrator concluded the applicant did not suffer a complete inability to carry on a normal life, as she was capable of engaging in activities with her children and her condition had improved enough for her supportive counseling file to be closed.

The claims for caregiver benefits, non-earner benefits, and interest were dismissed.

The appellant appealed a jury verdict and a trial judge's ruling on a threshold motion following a motor vehicle accident.

The jury found the appellant 10% liable and awarded $4,000, which was reduced to zero due to income replacement benefits.

The trial judge dismissed the claim for non-pecuniary damages, finding the appellant did not sustain a permanent serious impairment.

On appeal, the appellant challenged the trial accommodations, evidentiary rulings, the threshold decision, the jury charge, the verdict, and alleged trial judge bias.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's rulings and ample evidence to support the jury's verdict.