Court File and Parties
COURT OF APPEAL FOR ONTARIO
SHARPE, CRONK and LANG JJ.A.
BETWEEN:
RONALD CUMMINGS JR. by his litigation guardian, RONALD CUMMINGS SR.
Plaintiff (Respondent)
and
ANGELA NADINE DOUGLAS
Defendant (Appellant)
Counsel: Mark .L.J. Edwards for the appellant Gregory P. Kelly Q.C. for the respondent
Heard and released orally: August 31, 2007
On appeal from the judgment of Justice G.R. Morin of the Superior Court of Justice dated November 17, 2005.
ENDORSEMENT
Overview
1The appellant challenges the award of costs for the 2005 mistrial, the quantum of costs for the 2006 trial, and the sequence of the deductibility of the income replacement benefits.
Costs of the Mistrial
2On the issue of the costs of the mistrial, given the absence of fault in the filing of the exhibit, an order that the costs of the mistrial be borne by the defendant/appellant was by no means inevitable. However, as this is a matter within the discretion of the trial judge, to which appellate deference is owed, we see no basis to interfere.
Quantum of Trial Costs
3On the quantum of trial costs, the trial judge’s decision is also entitled to deference. In careful and thoughtful reasons, the trial judge addressed all the relevant factors, including the question of the reasonable expectations of the parties and the amount actually recovered at trial. We see no basis to interfere with his conclusion on this issue.
Deductibility of Income Replacement Benefits
4Finally, the appellant argues that the income replacement benefits ought to have been deducted from the amount of damages awarded to the respondent after the deduction required for the jury’s finding of contributory negligence. The trial judge made the deduction from the overall assessment of damages, rather than from the damages actually awarded to the respondent by the jury.
5At the time of the award, s. 267(1) of the Insurance Act provided simply for the reduction of the “damages awarded to a person” on account of statutory benefits. Subsequently, the provision was amended to clarify that the reduction “shall be made after any apportionment of damages required by s. 3 of the Negligence Act.”
6The trial judge reviewed several trial authorities that diverged on the question of the sequence of deductibility, but none of these authorities provided any analysis of the issue.
7In his reasons, the trial judge viewed a deduction following the reduction for contributory negligence as penalizing the respondent.
8In our view, the trial judge erred in considering the issue to be one of penalty. Rather, the issue is resolved as a question of statutory interpretation in light of the purpose of the provision to prevent double recovery.
9The provision in force at the time required a reduction, not from the quantum of the damages assessed (before the application of contributory negligence), but from the amount of the “damages awarded” to the respondent. Accordingly, on its plain language, the deduction must be made from the amount actually awarded; that is, after the application of the reduction for contributory negligence.
10A subsidiary question arises as to whether the income benefits should be deducted only from the award for past loss of income or from the awards for both past and future loss of income. In our view, the deduction should properly be made from the global award for loss of income. We say this because the resulting award should not be arbitrarily determined merely by reference to the date the parties reached trial. Since the award is globally one for loss of income, it is from this award that the deduction must be made.
11In these circumstances, the parties have agreed that the respondent’s net damages award is $205,985.
Disposition
12In the result, the appeal is allowed in part and the judgment is varied in accordance with these reasons. The respondent is entitled his costs of the motion for delay fixed at $2,010.75. Given the divided success on the appeal, there shall be no order for the costs of the appeal.
“Robert J. Sharpe J.A.”
“E.A. Cronk J.A.”
“S.E. Lang J.A.”
