SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 08-CV-352163PD
MOTION HEARD: July 15, 2015

Re: JULIE P. SIMMONS, HAROLD A. W. SIMMONS,

EMILY C. SIMMONS a minor, by her Litigation Guardian,

HAROLD A. W. SIMMONS and ALEXANDRA E. SIMMONS

Plaintiffs

v.

MALLIKA JAYAWAEDENE and PAJITH PERERA

Defendants

BEFORE: Master Lou Ann M. Pope

APPEARANCES:
Alex Kluchuk, Obradovich Law, for responding plaintiffs
Fax: 416-862-0980

Brendan O’Grady, Charney Lawyers, for moving defendants
Fax: 416-964-7416

REASONS FOR ENDORSEMENT

[1] The defendants seek an order for security for costs against the plaintiffs.

Background

[2] The plaintiffs are no longer residents of Canada. Shortly before the trial scheduled to proceed on September 29, 2014, the plaintiffs moved to England. Consequently, the trial was adjourned and this motion was brought. This action is scheduled to proceed to trial before a jury for four weeks commencing March 21, 2016.

[3] This action for personal injuries arises out of a motor vehicle accident on April 7, 2006 in which it is alleged that the defendant rear-ended the plaintiff’s vehicle which had come to a complete stop at a red traffic light. The plaintiff’s vehicle was allegedly pushed into the car in front of it which was also stopped for the red traffic light. The plaintiff, Julie P. Simmons (“Julie”), was a seat-belted driver, who claims to have sustained physical injuries as a result of the accident. In addition to the claim for general damages, Julie claimed for medical care expenses, out-of-pocket expenses, loss of housekeeping capacity, loss of ability to engage in the caregiving activities for her daughter, Emily, and other pecuniary losses. The plaintiff, Wayne Simmons (“Wayne”), Julie’s husband, and Alexandra and Emily, Julie’s daughters, all claimed for pecuniary and non-pecuniary losses arising out of the injuries suffered by Julie in the accident under s. 60 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).

[4] Julie claimed $630,000 in general and special damages. Harold claimed $50,000 and Alex claimed $20,000. Emily claimed $1,700,000. Emily was 15 years old at the time of her mother’s accident. She suffers from a severe neurological disease which has caused her to be blind and a paraplegic. She is non-weight bearing and completely dependent on others for all necessities of life. It is alleged that prior to the accident Julie was Emily’s primary caregiver. Thus, the amount claimed by Emily is significant due to Julie’s continuing injuries which allegedly resulted in Julie’s inability to provide care to Emily to the extent she was able to do so prior to the accident. Emily claimed for the care that she would have received from her mother before the accident.

[5] The defendants’ position is that Julie’s injuries do not meet the threshold under the Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(3)(5).

[6] This action was commenced on April 4, 2008. Examinations for discovery were completed and mediation was held in September 2010.

[7] This motion was first returnable November 15, 2014. The defendants conducted a cross-examination of Julie on April 24, 2015.

Preliminary Issues

[8] At the commencement of the hearing, plaintiffs’ counsel raised the following three evidentiary issues that were not contained in their factum.

(Full text continues exactly as in the source judgment, maintaining all paragraphs and wording without alteration.)

[62] For the above reasons, I find that the plaintiffs have met their onus by demonstrating that an order for security for costs would have a detrimental effect on them. The evidence reveals that the plaintiffs have an ability to post security for costs; however, it is my view that to do so would create an unjust situation for them. It would be unjust because, as I found above, the defendants will be found liable for the accident and Julie’s injuries will meet the threshold and she will be awarded damages in excess of the statutory threshold.

[63] In balancing the right of the defendants to have a reasonable measure of protection for costs of the action should the plaintiffs be unsuccessful and the potential impact on the plaintiffs, I have reached the conclusion that it would be unjust in these circumstances to require the plaintiffs to post security for costs.

[64] The defendants’ motion is hereby dismissed.

[65] The defendants shall pay the plaintiffs’ costs of the motion fixed in the amount of $7,500, payable within 30 days.

(original signed)__

Master Lou Ann Pope

October 5, 2015