ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-CV-43686
DATE: 20150728
BETWEEN:
KOSSAY EL-KHODR
Plaintiff
– and –
RAYMOND C. LACKIE, JOHN MCPHAIL, ATS ANDLAUER TRANSPORTAITION SERVICES GP INC., AND TRAILCON LEASING INC.
Defendants
Joseph Y. Obagi and Elizabeth A. Quigley, for the Plaintiff
Barry A. Percival, Q.C., for the Defendants
HEARD: By Written Submissions
REASONS FOR DECISION ON PREJUDGMENT INTEREST, APPLICATION OF TRUST AND ASSIGNMENT PROVISIONS OF THE INSURANCE ACT, AND COSTS
TOSCANO ROCCAMO J.
[1] The Plaintiff, Kossay El-Khodr, brought an action seeking damages for catastrophic injuries sustained in a motor vehicle accident against Raymond Lackie, the driver of the vehicle that rear-ended Mr. El-Khodr’s vehicle, and John McPhail, the owner of the vehicle driven by Mr. Lackie. On April 29, 2015, after four weeks of trial, the jury awarded the Plaintiff the sum of $2,931,006, broken down as follows:
Past Loss of Income
$220,434General Damages for Pain and Suffering and Loss of Enjoyment of Life
$225,000Future Loss of Income
$395,593Future Care Costs
a) Future Attendant Care Costs/Assisted Living
b) Future Professional Services (Physiotherapy, Psychology, etc.)
c) Future Housekeeping and Home Maintenance
d) Future Medication and Assistive Devices
$1,450,000
$424,550
$133,000
$82,429
A copy of the verdict sheet is appended to these Reasons.
[2] My Endorsement of April 29, 2015 granted judgment to the Plaintiff in accordance with the verdict, and directed the parties to provide me with written submissions in respect of the assignment of past and future collateral benefits, prejudgment interest and costs by June 30, 2015. I have since received additional reply submissions on behalf of the Plaintiff.
Issues
[3] Noting the concessions made in the parties’ submissions, the parties seek direction on the following outstanding issues:
On what date should prejudgment interest on the amount awarded for past income loss cease to accrue?
What is the applicable rate for prejudgment interest on the jury’s award for non-pecuniary damages?
Does the Court have jurisdiction to make an order pursuant to the trust and assignment provisions of the Insurance Act in the absence of a notice of motion?
To what amount of costs is the Plaintiff entitled?
Analysis
1. On what date should interest on the award for past income loss cease to accrue?
The Law
[4] Section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the CJA), provides:
- (1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order. [emphasis added]
[5] Section 258.3(8) of the Insurance Act, R.S.O. 1990, c. I.8, modifies s. 128 in relation to motor vehicle accident cases:
258.3 (8) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, no prejudgment interest shall be awarded under section 128 of the Courts of Justice Act for any period of time before the plaintiff served the notice under clause (1) (b).
The Positions of the Parties
[6] The Plaintiff concedes that the Defendants are entitled, by reason of income loss replacement payments made to the Plaintiff by his insurer, to a credit of $173,814.82 against the damages awarded for past income loss, resulting in a net income loss payable to the Plaintiff of $46,619.19.
[7] The Plaintiff further concedes that the prejudgment interest on the net past income loss should be calculated at a rate of 1.25% (i.e. half the applicable rate of 2.5%).
[8] The Plaintiff and the Defendants agree that interest should begin to accrue as of May 29, 2007, the date on which the Plaintiff provided his first written notice of claim. The parties differ on when that interest should cease accruing.
[9] The Defendants argue that interest should cease accruing as of March 30, 2015, as the evidence of the accountant who testified for the plaintiff at trial was based on past loss of income to March 30, 2015. This would result in prejudgment interest in the amount of $4,567.72 payable on past income loss.
[10] The Plaintiff, by contrast, argues that interest should cease accruing as of the judgment date, being April 30, 2015. This would result in prejudgment interest in the amount of $4,618.81 payable on the award for past income loss.
Analysis and Conclusion
[11] Counsel for the Defendants did not provide, and I cannot find, any basis in law for the proposition that the interest should cease accruing on the date on which the expert accountant based his assessment of past loss of income. Section 128(1) of the CJA clearly provides that the relevant date is the date of the order. This is also logical given that, at the date of the order, the Plaintiff continued to be deprived of the money to which he was entitled as at March 30, 2015 and thus should be entitled to interest up until the date of the order, regardless of the time period used to calculate past loss of income.
[12] As such, the Plaintiff is entitled to $4,618.81 in prejudgment interest with respect to the award for past income loss.
(Decision continues exactly as above through paragraph [126], preserving wording and structure.)
Madam Justice Giovanna Toscano Roccamo
Released: July 28, 2015
COURT FILE NO.: 09-CV-43686
DATE: 20150728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KOSSAY EL-KHODR
Plaintiff
– and –
RAYMOND C. LACKIE, JOHN MCPHAIL, ATS ANDLAUER TRANSPORTAITION SERVICES GP INC., AND TRAILCON LEASING INC.
Defendants
REASONS FOR Decision on Prejudgment interest, APPLICATION OF Trust and Assigment pROVISIONS OF THE INSURANCE ACT, and costs
Toscano Roccamo J.
Released: July 28, 2015