Kevin Henderson

Following a jury trial in a motor vehicle accident case, the court addressed three post-trial issues: (1) whether Canadian Emergency Response Benefit (CERB) payments received by the plaintiff should be deducted from the past income loss award; (2) the amount of partial indemnity costs payable; and (3) the amount of assessable disbursements.

The court held that CERB payments were not deductible as they were not paid "in respect of the incident" under the Insurance Act, and the plaintiff faced potential repayment obligations.

The court awarded partial indemnity costs of $327,700.00 (inclusive of HST) and allowed all claimed disbursements of $167,894.62, including expert meeting costs and home modification reports.

The plaintiff was bitten by the defendant's large dog, resulting in a torn left rotator cuff and permanent impairment of her left shoulder.

Liability was not disputed under the Dog Owner's Liability Act.

The trial focused on the assessment of damages.

The court found that the dog bite caused the shoulder injury and awarded $100,000 in general damages.

The court also awarded $59,818.90 for past loss of income, but denied future loss of income as the plaintiff had reached typical retirement age and had other unrelated health issues.

Future care costs were assessed at $197,712.00, out-of-pocket expenses at $21,036.91, and OHIP's subrogated claim at $7,866.96, for a total judgment of $386,434.77.

The defendant brought a motion to compel the plaintiff to attend a defence psychiatric assessment after the action had been set down for trial.

The plaintiff had served a new psychiatric expert report after the matter was set down, prompting the defendant's request to obtain a responding report.

The court granted leave under Rule 48.04 to bring the motion, finding it just in the circumstances.

The court ordered the plaintiff to attend the psychiatric assessment, emphasizing trial fairness and the defendant's right to respond to the plaintiff's new expert evidence with an expert of their choosing.