K. Bruce Chambers

This decision concerns a threshold motion following a jury trial for damages arising from a motor vehicle accident.

The court was required to determine whether the plaintiff, Carissa Marcantonio, suffered a "permanent serious impairment of an important physical, mental or psychological function" as defined by the Insurance Act.

After reviewing the evidence of the plaintiff, her family, friends, treating professionals, and expert witnesses, the court found that the plaintiff suffered a severe, permanent impairment of an important mental or psychological function as a result of the accident, entitling her to general damages as awarded by the jury.

The plaintiff sought an assessment of costs after accepting a Rule 49 offer to settle from State Farm Mutual Automobile Insurance Company and Certas Home and Auto Insurance Company, statutory third parties.

The court had previously awarded the plaintiff partial indemnity costs for the tort action but denied costs related to the recovery of statutory accident benefits (SABS) and Canada Pension Plan (CPP) disability benefits.

Both parties sought costs for the assessment motion.

The court found that success was divided, as the plaintiff succeeded on the quantum of legal fees for the tort action and disbursements, but failed on SABS and CPP costs.

State Farm failed to resist the quantum of legal fees.

Given the divided success and the complexity of some issues, the court ordered that each party bear their own costs.

The plaintiff brought a motion to exclude potential jurors or permit challenges for cause in a civil motor vehicle accident case, arguing that jurors who pay automobile insurance premiums have an inherent conflict of interest.

The court adjourned the motion, directing the plaintiff to serve the Attorney General and inviting The Advocates' Society to intervene as a friend of the court, recognizing the novel and broad implications of the issues raised regarding civil jury selection and impartiality.

Following a jury trial where liability was admitted, the jury awarded the plaintiff $30,000 in damages.

However, the court granted the defendants' threshold motion, finding the plaintiff's injuries did not meet the statutory exceptions under the Insurance Act, resulting in a nil judgment.

Both parties sought costs.

The court held that because the plaintiff obtained a nil judgment, the cost consequences of Rule 49.10 did not apply.

Applying the factors under Rule 57.01, the court awarded the successful defendants their costs on a partial indemnity basis, fixed at $32,500.