T. H. Rachlin

In a personal injury appeal arising from a motor vehicle accident, the appellants challenged a damages award exceeding $1 million on the basis that the trial judge misapprehended the plaintiff's evidence, the medical evidence, and the vocational evidence concerning future work capacity, surgery, retraining, and retirement.

The Court of Appeal held that the award flowed from a series of serious factual errors and assumptions that could not be justified on the record, making a new trial necessary.

The court also held that, while contingency-like fee arrangements may exist between solicitor and client, a risk premium should not be included in a solicitor and client costs assessment under Rule 49 following an offer to settle.

Appeal allowed, judgment set aside, and new trial directed.

The respondents were involved in a motor vehicle accident and initially diagnosed with soft tissue injuries.

More than two years later, a CT scan revealed a herniated disc, prompting them to commence a tort action.

The appellant argued the action was statute-barred under the two-year limitation period in the Highway Traffic Act.

The Supreme Court of Canada held that the discoverability principle applies to the limitation period.

Because the right of action does not arise until the injury meets the statutory threshold under the Insurance Act, the limitation period does not begin to run until the material facts of sufficient injury are reasonably discoverable.

The appeal was dismissed.