Frank Burns

Following a jury trial arising from a motor vehicle accident, the court determined costs consequences after the plaintiff obtained a judgment significantly lower than the defendant’s Rule 49 offer to settle.

The jury awarded $100,000 in damages but the net payable amount after statutory deductions and contributory negligence was $49,000.

The court held that the defendant’s offer was substantially more favourable than the judgment and applied Rule 49.10 of the Rules of Civil Procedure.

The plaintiff was awarded partial indemnity costs up to the date of the defendant’s offer, while the defendant received partial indemnity costs thereafter.

The court fixed the plaintiff’s costs to the date of the offer at $65,000 and the defendant’s costs after the offer at $95,000, with an additional $7,000 to the plaintiff for post‑trial motions.

Following a jury verdict in a motor vehicle personal injury action, the defendant brought a motion to settle the judgment and determine whether statutory accident benefits previously received by the plaintiff should be deducted from future damages awarded by the jury.

The plaintiff had settled accident benefits claims with the insurer through a lump‑sum settlement covering income replacement, medical, rehabilitation, and attendant care benefits.

The court held that deductions under s. 267.8 of the Insurance Act require alignment between the benefit received and the head of damages awarded (“apples to apples”).

Because the settlement amounts did not specify what portion related to future benefits and the jury award did not allocate future care costs among categories, the court found it impossible to determine proper deductions.

No deductions were applied to the jury’s awards for future income loss or future care.

The defendant brought a motion under s. 267.5(5) of the Insurance Act to dismiss the plaintiff’s motor vehicle accident claim on the basis that the injuries did not meet the statutory threshold of a permanent serious impairment of an important bodily function.

The court considered extensive medical evidence regarding chronic pain, depression, and functional limitations following a clavicle fracture requiring surgical fixation.

The court accepted that the plaintiff’s chronic pain and associated symptoms were genuine and had significantly impaired his ability to work and participate in normal life activities for eight years following the accident.

Applying the threshold analysis under the Insurance Act and the approach articulated in Meyer v. Bright, the court found the impairment permanent, serious, and affecting an important bodily function.

The defendant’s threshold motion was therefore dismissed.