Scime v. Philippe, 2005 CanLII 21118 (ON SCDC)

Court File and Parties

COURT FILE NO.: 47/04

DATE: 20050614

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, JENNINGS AND SWINTON JJ.

B E T W E E N:

Helene Scime Appellant (Plaintiff)

• and -

Gerry Philippe and The City of Toronto Respondents (Defendants)

Wayne P. Cipollone, for the Appellant

Belinda A. Bain for the Respondents

HEARD: April 4, 2005; written submissions, April 11, 20 and 26, 2005

Supplementary Reasons for Judgment

by the court:

[1]

Supplementary Reasons

On April 7, 2005 we released reasons affirming the judgment of Pitt J. that the plaintiff had suffered no compensable damages as a result of the incident sued upon as she had not reached the 1996 Insurance Act threshold. Counsel for the plaintiff has written to us stating that we omitted to consider the evidence as to damages for past and future loss of income as to which there is no threshold. We have further considered the case in respect of those aspects.

2The plaintiff claimed lost past income at $55,000 and future lost income at $220,000. She asserted that she could no longer perform her duties as a Computer Graphics worker due to the "severe whiplash and chronic pain" suffered up to the time of trial as a result of the incident.

3The trial judge referred to there being "no evidence" to show that her failure to find work or to perform as before the accident was related to the injuries. We found that this was an error but that it did not affect the finding as to the threshold for general damages. In our reasons, we stated that:

On the totality of the evidence heard by the trial judge, it was open to him to conclude that there was insufficient evidence [to support] the plaintiff's testimony as to why she left her higher paying job, and could not find permanent employment, was because of the injuries sustained.

4There was in fact ample evidence to support the finding that her injuries were modest and did not meet the threshold. As to the lost income claims, there was some evidence in support of the claim, but there was much evidence from the defence that her alleged inability to perform was not so. One example is the report of Dr. Cameron, who was called for the defence, who stated that the plaintiff could physically handle twelve-hour days if she was willing to do so. There was evidence from the records of her employer that the plaintiff was not in the habit of working overtime before the accident, contrary to her testimony. There was also evidence from the plaintiff in cross-examination that there were jobs available that she was capable of doing which would pay her the income she was earning pre-accident.

5We agree with the submissions of the defendants that "the resulting conclusion reached by the trial judge (i.e. that the plaintiff has not and will not suffer a loss of income which is attributable to the accident) was reasonable, given the ample evidence at trial …".

6In our view, while the references to no evidence were in error, there was no palpable and over-riding error in the decision because there was evidence to support the conclusion reached by the judge, who was aware of the evidence. He spent over two pages of the reasons reviewing the medical evidence as to the injuries, so he was well aware that there was some evidence favourable to the plaintiff, but in his review, he rejected it in favour of other evidence. Taking the reasons as a whole, they support the conclusions reached.

7Accordingly, we do not disturb our previous order dismissing the appeal.

[8]

Costs

Turning to the issue of costs, the respondents ask for partial indemnity costs up to the date of their offer to settle and substantial indemnity costs thereafter. They do not suggest that they are entitled to substantial indemnity costs but that the offer is a factor to be considered and that in our discretion we should award them.

9The offer was sent on January 9, 2004. The respondents offered to give up their claim to costs of the action to date if the plaintiff would abandon the appeal. The offer was not accepted. We agree that the offer is a factor we are to take into account, even though Rule 49 does not apply to appeals: Jones v. Kansa General Insurance (1992), 10 O.R. (3rd) 56 (C.A.).

10The plaintiff draws to our attention the reasons of the trial judge as to costs in which he refers to the plaintiff's health problems, unrelated to the accident, as one of the circumstances making it unfair that the plaintiff pay the costs of the defendants. The trial judge ordered costs restricted to disbursements. Counsel submits that the same circumstances, modest means and health problems, still prevail and asks that there be no costs. The respondents do not address the issue of the plaintiff's health in their submissions, but they did not seek to appeal the costs order restricting them to disbursements. One can assume that the trial judge was aware of the circumstances, although he did not spell them all out.

11The respondents submit a Bill of $17,485 for the appeal based on partial indemnity costs until the offer and substantial indemnity costs thereafter. The circumstances of this case are not such as to trigger substantial indemnity costs unless the offer does so and in our view, considering the offer along with the nature of the case and the problems to which the trial judge adverted, it is far from being a case for substantial indemnity costs.

12The Bill is calculated almost completely on a substantial indemnity costs basis and would therefore be substantially reduced to bring it to the partial indemnity costs level. The fees, of just over $15,000, would be reduced by one-third to one-half for that reason alone. The disbursements are $1106.18. The trial judge, being aware of the plaintiff's circumstances, reduced the trial costs to disbursements, but on appeal the plaintiff is having a second run at the case and perhaps ought not to expect the same degree of mercy. In all the circumstances, we fix the costs of the respondents at $5,000 inclusive of disbursements, plus GST.

Lane J.

Jennings J.

Swinton J.