CITATION: Mandel v. Fakhim, 2016 ONSC 6538
COURT FILE NO.: CV-11-429296
DATE: 20161020
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Alan Mandel, Plaintiff
-and-
Zohreh Fakhim, Univar Canada Ltd., and Roy Foss Motors Ltd. operating as Foss National Leasing, Defendants
BEFORE: F.L. Myers J.
COUNSEL: Alan L. Rachlin, for the Plaintiff
Frank N. DelGiudice and Michael Vrantsidis, for the Defendants
READ: October 14, 2016
THRESHOLD ENDORSEMENT
The Issue
[1] I decline to determine the issue of whether the plaintiff’s injuries meet the threshold established in s. 267.5(5) of the Insurance Act, RSO 1990, c.I.8. The issue is moot and there is good reason to decline to deal with the issue in any event.
The Jury’s Award
[2] The plaintiff sued the defendants for damages sustained in a motor vehicle accident. The contact between the cars was slight. The plaintiff claims he suffered very substantial physical and emotional injuries from the minor physical contact. He claims that his injuries cause him to suffer severe and chronic pain. He has not worked since the accident occurred in 2009. He takes a substantial amount of prescription medication every day and he receives numerous, painful injections weekly. He undergoes other, invasive injections at less frequent intervals all to try to control his pain. Nothing the plaintiff does provides much, if any, relief for his pain. Mr. Mandel says that his pain is relentless and enduring.
[3] The plaintiff claimed more than $1.2 million in general and special damages as compensation for the injuries and losses that he says he sustained as a result of the motor vehicle accident. The trial lasted 12 days. The usual experts for both sides gave the usual testimony. And the jury gave the usual verdict. The jury awarded the plaintiff just $3,000 for general damages and nothing at all for past or future income loss, medical care, and housekeeping costs.
[4] In Ontario, awards for non-pecuniary damages arising from motor vehicle accidents are subject to a mandatory deductible amount under s. 267.5(7) of the Insurance Act, RSO 1990, c.I.8. The applicable amount of the deductible in this case is at least $30,000. Therefore, although the jury awarded the plaintiff damages of $3,000, the plaintiff will not recover any money as a result of the application of the statutory deductible to his award.
[5] It is perfectly clear that the jury believed that the minor contact between the vehicles caused Mr. Mandel only very minor injuries and it awarded him very modest damages accordingly. There is no way to understand the jury’s verdict other than to conclude that either: (a) the jury did not believe the plaintiff’s testimony as to the extent of his injuries; or (b) they did not believe that the plaintiff proved that his injuries were caused by the trivial contact between the parties’ vehicles.
[6] While the jury was deliberating, Mr. Rachlin argued that his client had met the threshold for claiming non-pecuniary loss in accordance with s. 267.5(15) of the Insurance Act. Mr. Rachlin argued that it is a misnomer to speak of a “threshold motion” at trial. Rather, the subsection provides that where no pre-trial motion is brought to determine the threshold issue, then the judge at trial shall determine the issue. Accordingly, he argued that the threshold issue is simply one more issue on which the burden is on the plaintiff at the trial. As such, he said that the plaintiff should argue first and have an opportunity to reply. In other trials, it has been more common for the defendant to bring a motion to argue that the plaintiff failed to meet the threshold. While nothing of substance turns on the point, I found that Mr. Rachlin’s interpretation is correct and therefore he argued the point first and last. See Valentine v Rodriguez-Elizade, 2016 ONSC 3540 at para. 16.
[7] After concluding argument and hearing the jury’s verdict, I raised a concern with counsel about whether I should determine the threshold issue. Mr. Mandel will not receive any money as a result of the jury’s verdict. Deciding whether his injuries meet the threshold appears to have no practical effect between the parties. An issue that does not resolve a current dispute between the parties is said to be moot. Moot points are not generally decided by courts. But the court retains a discretionary entitlement to do so in appropriate cases. Borowski v. Canada (Attorney General), 1989 123 (SCC).
[8] Of greater concern to me is that in order to find that the plaintiff met the threshold as he argues, I would necessarily be disagreeing with the jury’s findings. That is, to hold for the plaintiff, I would have to hold both that the plaintiff suffered at least most of the injuries he claims and that the contact between the cars was a cause of those injuries. Making at least one and perhaps both of those findings would necessarily put me in direct conflict with the jury’s verdict.
[9] While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land. This jury has spoken and did so loud and clear. If I find that the plaintiff has proven that he met the threshold, I would not only be making findings of law, but I necessarily would have to disagree with the findings of fact that are implicit in the jury’s decision. Yet I told the jury an obnoxious number of times in my charge that they, and only they, were the judges of the facts of the case. I told them that their community had called upon them to take 12 days out of their lives so that they could make findings that only they can make in an act of central importance to our democratic traditions. How can I legitimately now consider whether I find facts that the jury rejected?
[10] What does it say about what I told the jury and about the legitimacy of the jury’s role, if the judge may not only ignore their findings, but may make binding pronouncements that fly in the face of the jury’s findings? Facts cannot exist and not exist at the same time. The plaintiff’s injuries exist or they do not; they were caused by the motor vehicle collision or they were not. I am being invited to find that facts were proven at trial when the jury has already found that those facts were not proven. I cannot do that without undermining the role of the jury as the exclusive finders of fact. I cannot do that without making portions of the standard civil charge to the jury untrue. If a judge can find facts that are inconsistent with the jury’s findings and that have legal effect, what justification is there to summon people away from their lives to compel them to attend court? I am already being paid to do the same job anyway.
[11] In Johnston v. State Farm, 2011 ONSC 3675, my colleague, Justice M.F. Brown, declined to make a threshold ruling in similar circumstances and found that the issue had become moot. At para. 6, he wrote:
In my view, the jury’s award makes the threshold issue moot. The plaintiff collects nothing as a result of the lawsuit, and it will be of no practical benefit to either the plaintiff or the defendant to have a decision on whether or not the plaintiff meets the threshold. See Petterson v. Phillips 2008 19504 (ON SC).
[12] In G.W. v Rawlins, 2016 ONSC 705, LeMay J. discussed the concept of mootness specifically in the context of the role of juries. He wrote:
[10] Counsel for the Defendant pointed to the decision of D.M. Brown J. (as he then was) in Clark v. Zigrossi (2010 ONSC 6357). In that decision, which also addressed a threshold motion, Justice Brown analyzed a number of conflicting decisions about the timing of the threshold motion. He then noted that, in the general law, there are rare circumstances when a jury’s verdict can be set aside.
[11] Justice Brown went on to observe that the threshold motion is different than a normal jury verdict because the Legislature has specifically assigned the task of dealing with these motions to judges. He concludes by observing (at paragraph 18):
The danger of threshold motions after the jury has rendered its verdict is, as has been indicated in Justice Riley's decision in Parks v. Peter, the possibility of inconsistent findings of fact by the trial judge and by the jury. If a jury has been selected as the trier of fact and if we are to preserve the jury system in civil cases in this Province, in my respectful view judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts. Where the trial judge can infer what those findings of fact were, a jury verdict should not be interfered with, directly or indirectly, unless the rigorous test for setting aside a jury’s verdict is met.
[12] I find this analysis quite logical. It is important to remember that in this case one of the parties selected a trial by jury. Regardless of the outcome of the case, an inconsistency between the judge’s determination on the threshold motion and the jury’s determination of general damages can have the effect of emasculating the right to a jury trial.
[13] On the other hand, however, the Legislature has specifically endowed judges with the ability to determine threshold motions, even when a jury is engaged as the trier of fact. As a result, the legislature must have intended to give judges more power than they normally have under the Rules of Civil Procedure to preempt the jury verdict with their own findings.
[14] In my view, these competing considerations require judges to consider the verdict of the jury as a factor in determining the threshold motion, but they do not bind the judge to that finding in every case. However, given the importance of the jury trial to our legal system, it will only be the exceptional case where the judge should decide the threshold motion contrary to the jury’s verdict if the jury’s view of the facts is clearly known.
[13] No one argued before me that there are any grounds to set aside the jury’s verdict.
[14] There is no doubt that the court is entitled to take the jury’s verdict into account in deciding the threshold issue. The Court of Appeal said so expressly in Kasap v. MacCallum, 2001 7964 (ON CA). In that case, the judge heard the threshold motion and dismissed the case before the jury had delivered its verdict. The judge found that the plaintiff was not a credible witness. The jury then returned a verdict awarding significant damages to the plaintiff. The jury therefore accepted the credibility of the plaintiff’s testimony. In dismissing the appeal from the dismissal of the action, the Court of Appeal held at para. 8 of its decision:
Nowhere does the legislature say that the judge is bound to consider the jury verdict much less that the judge is bound by any implied finding of credibility of the jury. By the same token the legislation does not suggest that a trial judge cannot, in the exercise of judicial discretion, consider the verdict of the jury. The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the trial judge.
[15] It is clear that despite the role of the jury, judges have a role to play in assessing the threshold issue if for no other reason than the Legislature has said so. While there may be overlap between the respective roles of the judge in assessing the threshold issue and the jury in assessing tort liability and damages, there are also areas that do not necessarily intersect. The threshold is established under s. 267.5(5) of the statute that provides as follows:
Non-pecuniary loss
(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
[16] In assessing tort liability, the jury considers the plaintiff’s injuries and equates them to an appropriate amount of money damages in accordance with applicable common law principles. It is not part of the jury’s function to determine if the plaintiff has suffered “permanent disfigurement” or “permanent serious impairment of an important physical, mental or psychological function.” Each of those terms is defined and expanded upon in the relevant regulations. Moreover, the regulations require that specific medical testimony be adduced by the plaintiff in order to support the threshold decision. The findings of permanence, seriousness, and importance, while related to some of the evidence and issues before the jury, are distinct findings of mixed fact and law that are for the judge alone. Some of the evidence at the trial is directed specifically to issues that only the judge will make under the statute.
[17] However, there is one notable area where the judge and jury are called upon to make the exact same decision. The first 11 highlighted words in s. 267.5(5) above require the judge to determine if the plaintiff’s injuries are caused “as a result of the use or operation of the automobile.” This is the same causation decision that the jury is required to make to determine whether the defendant’s negligence caused the plaintiff’s injuries or losses. It is one thing to take the jury’s decision into account in making findings that are distinct from but perhaps relate to the issues decided by the jury. It is quite another thing, in my view, to be called upon to make the exact same decision as the jury. How do I take that decision into account as a factor in my decision? I either agree with it or I am disagreeing with the jury on an issue that was squarely before it for decision. To decide this issue differently from the jury fits Justice LeMay’s concern for “emasculation” of its functions. Moreover, Justice D.M. Brown (as he then was) cautioned that in just this circumstance the jury’s findings should not be departed from in the absence of grounds to set aside its verdict.
[18] In my view, this is precisely the case where the doctrine of mootness requires full application. If the decision that I am called upon to make risks undermining the jury’s clear findings and my decision has no effect in any event because plaintiff will receive no damages as a result of the jury’s verdict and the statutory deductible, then not only is there no purpose in making the threshold decision, but making the decision risks undermining the important and singular function of the jury.
Retrospectivity of the 2015 Amendment to [s. 267.5(9)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html) of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)
[19] The plaintiff argues that there may be a circumstance in which a threshold decision is not moot. Were the court to find that the threshold was met, then the issue of costs would include an assessment of whether the verdict of $3,000 ought to entitle the plaintiff presumptively to receive costs. That issue would be open for argument and could also be affected by any offers to settle exchanged by the parties prior to the trial. I have not yet heard costs submissions or seen any offers to settle that may have been exchanged.
[20] Subsection 267.5(9) used to provide that the court’s decision on costs was to be made without paying any attention to the outcome of the application of the deductible in s. 267.5(7) of the statute. That is, the legislation specifically used to require that the Court ignore the application of the deductible and decide costs as if the plaintiff was going to receive the full amount ordered by the jury even if his or her award was actually wiped out by the statutory deductible. This was changed however by subsection 3(4) of Schedule 17 to the Building Ontario Up Act (Budget Measures), 2015 SO 2015, c.20. That subsection was proclaimed into force on August 1, 2015 more than one year before the trial started. It changed the words “made without regard” in s. 267.5(9) to “made with regard” so that costs decision are now made with regard to the outcome of the application of the statutory deductible.
[21] Mr. Rachlin agrees that if the new section applies to this action so that the costs decision is to be made based on his client recovering no damages after application of the statutory deductible, then the threshold decision is indeed moot. That is, if the statutory deductible applies to the costs decision, then Mr. Mandel, will be in the exact same position for costs purposes regardless of the outcome of the threshold decision. If the threshold is met but he obtained no recovery, the action will still be dismissed and the costs decisions will not be affected by the threshold decision. If the threshold is not met, then Mr. Mandel is in no different position. The action will be dismissed in either event.
[22] I question, without deciding, whether this point actually matters. Mr. Rachlin assumes that since his client is taken to have been awarded $3,000 for costs purposes, he may claim to have won the trial. He may or may not be entitled to receive any costs himself because Rule 57.05(1) allows the court to withhold costs where the level of recovery is within the monetary jurisdiction of the Small Claims Court. But, with a recovery of $3,000, at least the plaintiff can argue that he did not lose the case so the defendant should not be entitled to its costs. I am dubious of the underpinnings of this argument. It is certainly arguable that a plaintiff who seeks over $1 million in damages but who wins $3,000 has lost pure and simple. The case was not brought to trial to recover $3,000 in damages for transient soft tissue injury from auto contact that barely qualifies as a fender bender. The plaintiff brought the claim to trial because he attributes life altering pain and suffering to the defendant’s negligence. He was unsuccessful in that effort. But I cannot say at this juncture what the costs outcome would be if the matter were to be argued. I am aware that there are precedents for this type of costs argument that I have not been shown or considered. I have not seen any offers to settle as yet. I have not heard counsel’s costs arguments. So while I have questions about the underpinnings of the plaintiff’s argument, for the purposes of assessing mootness, I have to conclude that if the statutory amendment to s. 267.5(9) proclaimed last year does not apply – that is, if the plaintiff is entitled to rely on his recovery of $3,000 to argue for costs without regard to the statutory deductible – then the threshold issue is not yet moot.
Retroactive or Retrospective
[23] Care must be taken in assessing older case law concerning the retroactivity of statutory amendments because the nomenclature has changed. In older case law the words “retroactive” and “retrospective” were often used interchangeably. The presumption against retroactivity was often expressed as a presumption against retrospectively. But the words no longer mean the same thing.
[24] A retroactive statute is one that applies to a time before it was enacted. It changes rights that were vested or settled prior to the statute becoming effective. A retrospective statute is different. It applies to a matter that is determined after it is enacted. That matter may have first arisen prior to the statute being enacted but the matter was not yet determined. So, in a retrospective statute, no vested rights are removed. No legal status is changed. What changes involves a future decision that may turn in part on actions that occurred in the past. Benner v Canada (Secretary of State), 1997 376 (SCC), [1997] 1 S.C.R. 358 at para. 39.
[25] The costs decision in this case is a perfect example of a retrospective operation of a statutory amendment. The costs decision in this case has not been made as yet. Neither party has a vested entitlement to costs. Costs are discretionary under s. 131 of the Courts of Justice Act, RSO 1990, c.C.43. Under our normative approach to costs, we assume or start from the proposition that costs follow the event. DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at para. 5. But the court always has a discretion to depart from that outcome with good cause.
[26] Subsection 267.5(9) currently provides:
(9) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party’s entitlement to costs shall be made with regard to the effect of paragraph 3 of subsection (7) on the amount of damages, if any, awarded for non-pecuniary loss.
[27] This is the law that applies now to the costs decision that I will shortly be called upon to make under s. 131 of the Court of Justice Act. On its face, it appears to apply prospectively to the upcoming decision.
[28] But, this case commenced in 2011. There may well be facts that arose prior to the proclamation of the amendment to s. 267.5(9) that are relevant inputs into the costs decision. For example, there may be offers to settle that were delivered prior to August, 2015 that will be argued to affect the exercise of the court’s discretion as to costs under Rules 49 and 57 of the Rules of Civil Procedure. But it is equally clear however, that the costs decision has not yet been made. The Court has not exercised its discretion under s. 131 of the Courts of Justice Act as yet. No one has a vested right to costs. The decision will be made well over one year after the statutory amendment came into place. Yet the decision may take into account facts that arose prior to the enactment of the amendment. That is a retrospective operation of the amendment. The question therefore is whether, in the absence of transitional guidance in the enacting statute, the Legislature intends that the new regime govern retrospectively in costs decisions made after the amendment was proclaimed or whether future costs decisions in cases that were commenced under the old regime continue to be decided under the prior, repealed provision even after enactment of the new amendment?
[29] In Cobb v. Long Estate, [2015] 90544, Mr. Justice Belch considered whether the amendment to s. 267.5(9) that increased the statutory deductible from $30,000 to $36,540, applied to an action commenced prior to the amendment. He recognized that the parties had conducted the litigation almost entirely under the former regime. He set out the applicable legal test as follows:
[63] Justice Aitken [in Carleton Condominium Corp. No. 21 v. Minto Construction Ltd., 2002 CarswellOnt 1515] cited with approval chapter 19, the Temporal Operation and Application of Legislation in Driedger on the Construction of Statutes, p 552:
(i) It is presumed that legislation is not meant to have a retroactive application. This presumption applies to all legislation, including procedural provisions … The presumption is strong, but may be rebutted either expressly or by necessary implication.
(ii) It is presumed that legislation is meant to apply immediately and generally to ongoing facts unless its application would interfere with vested rights. This presumption applies to all legislation, including procedural provisions …
(iii) It is presumed that legislation is not meant to interfere with vested rights. Where the impact of legislation on a protected interest or expectation is arbitrary or unfair, the legislation is presumed not to apply. The greater the unfairness, the stronger the presumption. By definition, provisions that are purely procedural …do not interfere with vested rights.
[30] Justice Belch then discussed applicable precedents including the following:
[64] Justice Aitken at paragraph 22 wrote:
All of the parties’ pretrial conduct in preparation, exchange of offers to settle, and conduct at trial occurred prior to the amendments to Rule 57.01 coming into effect. To the extent that the new costs regime alters the legal significance of any of the parties’ past actions or conduct, it will have a retroactive effect. At least in regard to the legislation, in the absence of a clear indication that a retroactive effect was intended, such effect is normally not read into the new provisions.
[65] It is acknowledged the trial itself, Wade Cobb v. Long Estate, was conducted after the insurance amendments came into effect while all pre-trial activity took place under the Rider regime [Rider v. Dydyk, 2007 ONCA 687]. The court notes no transition provisions were included in the amendment to the Insurance Act.
[66] Justice Aitken also points to pp 530 -543 of Driedger where it is written:
To deprive individuals of existing interests or expectations that have economic value is akin to expropriation without compensation, which has never been favored by law. To worsen the position of individuals by changing the legal rules on which they relied in arranging their affairs is arbitrary and unfair. Where the application of new legislation creates special prejudice for some, or windfall for others, the burdens and benefits of the new law are not rationally or fairly distributed. These effects may be hard on the individuals involved and they undermine the general security and stability of the law. For these reasons interference with vested rights is avoided in the absence of a clear legislative directive.
[67] Justice Brown in Ontario (Ministry of Finance) quoted from Hislop v. Canada, 2007 SCC 10, a decision of the Supreme Court of Canada which observed ‘people generally conduct their affairs based on their understanding of what the law requires.’ Then he also noted from Driedger,
In order to comply with the law or rely on it in a useful way, a person must know what the law is prior to acting and must also trust that it will not undergo unfair or arbitrary change. The retroactive application of legislation makes it impossible for the law to be known in advance of acting: the content of the law becomes known only when it is too late to do anything about it. When legislation is applied retroactively, the law is deemed to have been different from what it actually was. This sort of tampering with reality is inherently arbitrary. It is also unfair in so far as it inflicts loss or hardship on persons in ways that could not have been anticipated.
[31] Ultimately, Belch J. ruled that the claim before him was to be determined based on the statutory deductible as it existed prior to the amendment to the relevant section. I respectfully fear that he may have been led into the nomenclature confusion to which I made reference previously. The legal test as correctly set out by Professor Sullivan in the Drieger text distinguished between statutes with retroactive and retrospective operation. It is presumed that the Legislature did not intend the former and that it did intend the latter. That is, retrospective application of statutory amendments is intended where there is no interference with vested rights. However, the presumption may be weakened or displaced where an amendment interferes with less certain expectations or interests in an arbitrary or unfair way.
[32] I respectfully cannot agree with a classification as retroactive of the prospective application of an amended statutory deductible amount to pre-existing litigation. Rather, I agree with the decision of Firestone J. in Valentine v Rodriguez-Elizade, 2016 ONSC 3540 at paras. 98 et seq. and the decision of James J. in Vickers v Palacious, 2015 ONSC 7647 cited by Firestone J.
[33] Similarly, I cannot agree with the classification as retroactive of an enactment that interferes with the significance of a particular past fact or factor in a future assessment of the court’s discretion as to costs. Costs decisions are recognized as the quintessential discretionary decision and are not lightly interfered with on appeal for that reason. Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3 at 32, 1995 145 (SCC). The plaintiff had no vested right to an award of costs. At best, before August 1 2015, he had a possibility of presumptively succeeding in obtaining a discretionary award of costs if he won damages of $30,000 or less and also won the threshold issue at trial some time in future. But there were always factors that would have to have been balanced by the court deciding the costs award after trial that could change that result. Offers to settle are one obvious example. Future procedural or trial misconduct is another. Rule 57.01 lists numerous inputs into the exercise of judicial discretion on costs. Moreover, as mentioned above, even the presumption that costs should follow the event may itself be questionable in a case where a plaintiff obtains only $3,000 on a $1.2 million claim.
[34] Although much of this action was conducted under the old regime, that provided for the deductible not to be taken into account in a future costs decision, the regime changed over a year ago. The trial, which is the main event, had not been conducted. The outcome of the trial, being a key driver of costs, was not known in August, 2015. The threshold outcome, another key drive of costs, was not known in August, 2015. I do not see any deprivation inflicted on a plaintiff in these circumstances. For several years the plaintiff had a greater possibility to have costs decided in his favour if he won less than $30,000 at trial and if he won the threshold issue. Since 2015 the rule changed. Since August 1, 2015, the plaintiff has known that if he recovers less than $36,540 at the trial he would not be presumptively entitled to costs when that decision is made in the future. Offers to settle remain to be considered. Arguments under Rule 57 and for the equitable exercise of the court’s discretion remain to be considered.
[35] I do not see anything that might be said to have been expropriated or taken from the plaintiff that was his before the amendment came into force. The costs decision will still be made in accordance with the judicial discretion provided by s. 131 of the Court of Justice Act, subject to the key inputs under Rule 57, and factoring in issues proportionality. Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37. The actual results to the parties will now be used to gauge the degree of the plaintiff’s success at trial instead of using the unadjusted jury verdict. There has been no tampering with reality. Rather, one of a number of factors in a very discretionary, future balancing process was changed to reflect the actual facts on ample notice to the plaintiff. This does not affect his settled interests or expectations in an arbitrary or unfair way. I see no basis for the old, repealed law to be assumed to have been intended to apply to this case.
[36] Finally, the defendants argue that costs awards are procedural in nature and procedural laws are generally also deemed to apply retroactively. The plaintiff argues that a change to a party’s eligibility for costs is different in kind than a change to the quantum of costs so that the former ought to be seen as being substantive rather than procedural. Assuming, without deciding, that the change to s. 267.5(9) is a change to eligibility rather than to the costs quantum or process, I still do not need to decide this issue. Even if the amendment is substantive, I have already found that it is only retrospective and therefore it applies to this case.
[37] In light of this finding, the plaintiff concedes that the threshold issue is moot.
Summary
[38] As a result of the application of the statutory deductible, the plaintiff has not succeeded in obtaining any award of damages in this case. As a result, resolution of the threshold issue does not change the facts that will affect the costs outcome. The plaintiff’s recovery is the same regardless of the outcome of the threshold issue. The resolution of the threshold issue raises squarely factual issues that duplicate issues implicitly decided by the jury. There were no bases argued to set aside the jury’s verdict. Therefore, it would be unseemly and inappropriate to engage in the threshold decision were the court inclined to exercise its discretion to do so despite the mootness of the issue.
[39] Finally, it is possible that the threshold decision would not be moot if the provisions of s. 276.5(9) that existed prior to August, 2015 apply to the costs decision in this case. If the old law applies, the plaintiff’s costs entitlement would be based on him obtaining an award of $3,000 rather than $0. That could give the plaintiff a better argument at least to resist costs being awarded against him if not positively in his favour. However, the amendment to s. 267.5(9) affected a future decision to be based on numerous factors including some that might pre-date the amendment. That means that the amendment is retrospective rather than retroactive. The plaintiff was not deprived of a right that was already vested in him or his to enjoy. Rather, a factor available for him to claim costs or to resist a costs claim was altered. That does not amount to an arbitrary deprivation of any settled expectation nor otherwise provide a basis to find that the Legislature intended that the amendment would not operate prospectively in cases that were commenced prior to its proclamation. That is, the plaintiff’s case falls to be decided under the current version of s. 267.5(9). As such, the plaintiff concedes that the threshold issue is moot.
Costs
[40] The parties will proceed with argument in writing concerning the costs of the trial including the threshold issue. The defendants may submit no more than 10 pages of submissions plus their Costs Outline and copies of any offers to settle on which they rely by November 4, 2016. The plaintiff shall submit no more than 10 pages of submissions plus a Costs Outline and copies of any offers to settle on which he relies by November 18, 2016. All submissions shall be in searchable PDF format attached to an email to my Assistant. No statutory material or case law shall be provided. Rather, references to statutory material and cases, if any, shall be by way of hyperlinks embedded in the parties’ submissions.
F.L. Myers J.
Date: October 20, 2016