Court File and Parties

Court File No.: CV-06-CV305132-0000 Date: 2016-07-07 Ontario Superior Court of Justice

Between: MARK COUPER Plaintiff

– and –

NU-LIFE CORP., NU-LIFE NUTRITION LTD., VITAQUEST INTERNATIONAL LLC, AND KEITH FRANKEL Defendants

Counsel: Mr. G. McGuire, for the Plaintiff Mr. Kenneth E. Jull, for the Defendants

Reasons for Decision (Prejudgment Interest)

J. Macdonald, j.

[1] The plaintiff is entitled to judgment in the amount of $687,639.50 (CAD). The plaintiff claims interest on this amount and submits that the appropriate rate is 3.3%, the rate in effect when the Statement of Claim was issued in January, 2006. The defendants have made no submissions in respect of interest.

The Applicable Interest Rate

[2] The Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), s.127(1) states that the prejudgment interest rate means the bank rate at the end of the first day of the last month of the quarter preceding the quarter in which the action was commenced, rounded to the nearest tenth of a percentage point. That date is December 1, 2005, and the bank rate then was 2.8%.

[3] Since then, the rate has fluctuated. It has been as high as 4.8% and as low as 0.5%. In Waxman v. Waxman (2003), 30 CPC (5d) 121(SCJ), the court averaged the interest rates over the lengthy period of time between when the Notice of Action was given and judgment. In this case, the average bank rate over the lengthy period between December 1, 2005 and April 29, 2016 (the date of judgment) is 2.1%. I fix the rate of prejudgment interest at 2.1% because that is a fairer rate, in all of the circumstances.

[4] None of the damages awarded is excluded from attracting interest pursuant to the CJA, s.127(4).

The Period of Time for Which Interest is Allowed

[5] The CJA, s.128(1) states that interest runs from the date when the cause of action arose to the date of judgment. Section 128(3) states that, if the judgment includes an amount for “past pecuniary loss”, the interest calculated under subsection (1) shall be calculated on “the total past pecuniary loss at the end of each sixth-month period and, at the date of the Order.” In my opinion, the damages to which the plaintiff is entitled, with the exception of the fourth item in the amount of $1,250.00 (USD) or $1,612.50 (CAD) are “past pecuniary loss”. The fourth item is an item of general damages.

[6] Referring to my Reasons for Judgment and also to my Reasons in respect of conversion of the assessments of damages into Canadian dollars, the following damages in Canadian dollars attract interest at the following times and for the following periods of time. The date of the contract in issue was October 20, 2003. Consequently, the end of the first sixth-month period thereafter pursuant to the CJA, s.128(3) is April 20, 2004.

[7] First, the $200,000 (USD) which was to be paid in four equal $50,000 payments made bi-weekly was all due and payable by April 20, 2004. Converted to Canadian dollars, the judgment sum is $262,500.00. I award prejudgment interest on that amount calculated at 2.1% per annum from April 20, 2004 to April 29, 2016.

[8] Second, I assessed the sum of $44,931.51 (USD) in damages which was owing as of October 20, 2003, for work prior to that date. This is $58,860.28 (CAD), and I award prejudgment interest on that amount calculated at 2.1% per annum from October 20, 2003 to April 29, 2016.

[9] Third, the plaintiff is entitled to damages for unpaid salary. For the reasons given, his monthly salary payment was $16,666.67 (USD). I have previously calculated the monthly Canadian dollar equivalents based on the exchange rate at the time when each monthly salary payment was owed. I award prejudgment interest on the total Canadian dollar value of all salary payment obligations from November 15, 2003 to April 15, 2004, calculated at 2.1% per annum from April 20, 2004 to April 29, 2016. I award prejudgment interest on the total Canadian dollar value of all salary payment obligations from May 15, 2004 to October 15, 2004, calculated at 2.1% per annum from October 20, 2004 to April 29, 2016. I award prejudgment interest on the total Canadian dollar value of all salary payment obligations from November 15, 2004 to March 15, 2005, calculated at 2.1% per annum from April 20, 2005 to April 29, 2016.

[10] Fourth, I found that the plaintiff is entitled to damages for the loss of the personal value of a company automobile between October 20, 2003 and March 15, 2005. I assessed damages in the amount of $1,250.00 (USD). This is $1,612.50 (CAD). The loss for which the plaintiff is compensated by this award is an item of general damages. It also in the nature of a running loss which increased over time. In my opinion, the fairest and simplest way in which to calculate the prejudgment interest entitlement is to start the interest at the midpoint between the two aforesaid dates, namely July 3, 2004. I award prejudgment interest on the sum of $1,612.50 calculated at 2.1% per annum from July 3, 2004 to April 29, 2016.

[11] Counsel shall complete the calculations and if they disagree on the interest, written submissions in respect of the prejudgment interest calculation shall be delivered by the plaintiff by July 18, 2016 and by the defendant by July 28, 2016.

Dated at Toronto this day of July, 2016. Mr. Justice John Macdonald

Released: July 7, 2016