Ross v. Bacchus, CITATION: 2013 ONSC 7773

COURT FILE NO.: 10-22627

DATE: 2013-12-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bryan Ross

AND: Shaheed Bacchus

BEFORE: Mr Justice Ramsay

COUNSEL:
Messrs D. Robert Findlay and Ryan Findlay for the plaintiff

Messrs Thomas Muir and Joel Chrolavicius for the defendant

HEARD: November 18-26, 2013 at Hamilton

ENDORSEMENT

[1] The plaintiff asks for costs. He was awarded $248,000 in damages for negligence after a six-day trial by jury. He won $145,000 in general damages, $47,000 for lost past income and $56,000 for loss of earning capacity. In his jury address, counsel for the defendant asked the jury to award general damages in the range of $10,000 to $15,000 and nothing for the other heads claimed.

[2] The plaintiff asks for $140,000 for costs, augmented by another $60,000 for the defendant’s failure to comply with its obligations under the Insurance Act to settle and to participate in mediation, plus $17,000 disbursements, with HST on all these amounts.

[3] The defendant, without submitting its own bill of costs, submits that the $140,000 and the $17,000 are excessive, and submits that only an appellate court has jurisdiction to award augmented costs under the Insurance Act.

[4] The plaintiff was seriously injured when the defendant drove his car into the rear of the plaintiff’s motorcycle, which was stopped at a red light. As a result the plaintiff has not been able to work as a sheet metal technician and has lost considerable enjoyment of life. The plaintiff proved his case by calling a friend, family members, colleagues, his family doctor and an expert orthopaedic surgeon. He also called a chiropractor who had been hired to examine him by his own accident benefits insurer. The chiropractor agreed in 2009 that the plaintiff was not able to perform the tasks associated with his job. The only witness offered by the defendant was one overused expert who submitted a report in which he offered his opinion on matters outside the expertise of a physician together with an inaccurate curriculum vitae. The witness lost his temper during reasonable cross-examination and made a bad impression.

[5] The defendant offered to settle for $40,000 on August 25, 2011, making it clear that this was not a starting point. The offer was withdrawn on March 28, 2012. On October 28, 2013 the plaintiff offered to settle for $94,065 plus prejudgment interest and costs and requested mediation. The defendant replied on October 29, 2013 with an offer to settle for $30,001 plus prejudgment interest and costs. The plaintiff countered with an offer to settle for $79,065 plus costs and interest.

[6] Counsel for the defendant agreed to brief mediation at limited cost but wrote, “[Certas] are not interested in settling this case.” Mediation took place on November 14, but the defendant’s insurer stood firm. I infer that it took a six-day trial with all its attendant risk for the sake of $50,000. This is a litigation strategy that the defendant could well afford, but the plaintiff could not. I infer that the insurance company conducted itself this way in the hopes of intimidating the plaintiff and deterring other plaintiffs who have meritorious cases. It did not attempt to settle the action expeditiously as required by s.258.5 of the Insurance Act.

[7] It is clear to me that the defendant’s participation in mediation was a sham. It refused to participate in any meaningful sense. It did not comply with s.258.6 of the Act.

[8] Consequences of these omissions should follow when costs are considered, as provided in subss. 258.5(5) and 258.6(2) of the Act.

Costs

[9] The plaintiff should have partial indemnity to October 28, 2013 and substantial indemnity thereafter. The amount proposed by the plaintiff is reasonable and would have been contemplated by the parties. I would award $140,000 in costs, plus $17,000 in disbursements, and HST on those amounts. By reason of the refusal to mediate I augment the award by $60,000 plus HST. The total cost award, then, is $217,000 plus HST.

[10] Unopposed I award $39,609.60 in pre-judgment interest.

J.A. Ramsay J.

Date: 2013-12-16