Court File and Parties
Court File No.: 07-CV-332951PD1 Date: 2017-06-22 Ontario Superior Court of Justice
Between: Quoc Nguyen by his Litigation Guardian Hoan Phan, Plaintiff/Responding Party – and – Jerzy Szot, Defendant/Moving Party
Counsel: Peter B. Cozzi, for the Plaintiff/Responding Party Vanessa A. Tanner and Christopher Scotchmer, for the Defendant/Moving Party
Heard: May 29, 2017
Before: Archibald J.
Reasons for Judgment
[1] The Plaintiff Quoc Nguyen brought a tort action against the Defendant Jerzy Szot for a motor vehicle collision which occurred on January 14, 2003. The action was tried before a jury, which returned its verdict on May 25, 2017. The jury found that there was negligence on the part of the Defendant that caused the collision and awarded the Plaintiff general (non-pecuniary) damages of $2,700.00 and damages for past loss of income in the amount of $3,124.00. The amount awarded by the jury for general damages is less than the applicable statutory deductible.
[2] The Defendant subsequently brought this threshold motion for an order declaring that the Plaintiff was not entitled to non-pecuniary damages because he failed to establish that he sustained a “permanent serious impairment of an important physical, mental or psychological function” as a result of the collision: Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5). The Plaintiff’s position was that the threshold issue did not need to be determined because it was moot because the jury’s general damage award netted to zero after the applicable statutory deduction. In the alternative, the Plaintiff argued that he had met the threshold.
[3] In addition, the parties agreed upon the quantum of costs and disbursements that would be payable by the losing side depending upon the outcome of this motion. The Defendant argued that he was the successful party in this action because of the net zero award and was entitled to costs under the principle that costs should normally follow the cause. In contrast, the Plaintiff argued that he was the successful party because of the jury’s award of nominal damages. Although both the general damage award and loss of income award were reduced to zero by the application of the statutory deductible and the collateral income replacement benefits deductions, the Plaintiff nonetheless argued that these deductions should not factor into the imposition of the costs award.
Issues
[4] The issues to be determined in this judgement are: (1) whether the threshold issue should be determined in this action; (2) if so, whether the plaintiff has met the threshold; and (3) entitlement to and quantum of costs in this action.
The Threshold
[5] The Plaintiff took the position that the threshold issue in this case was moot. The jury’s general damage award netted to zero after the applicable statutory deduction. The Plaintiff submitted that determining the threshold issue would be of no practical benefit to either party. He cited several decisions where our court found that it was unnecessary to determine the threshold issue.
[6] The Defendant’s position was that the threshold issue was only moot if the current version of s. 267.5(9) of the Insurance Act applied to this action. The provision states that “a party’s entitlement to costs shall be made with regard to [the non-pecuniary damage award net of the statutory deductible].” This section of the Insurance Act was amended in 2015. It previously directed the court to determine costs without regard to the statutory deductible. If the previous version of s. 267.5(9) applies to this action, then the Defendant submitted that the threshold issue was alive because it would be necessary, for costs purposes, to determine whether the Plaintiff can be considered successful in this action if the statutory deductible were not taken into account.
[7] Justice Myers held in Mandel v. Fakhim, 2016 ONSC 6538 that the amendment to s. 267.5(9) of the Insurance Act is retrospective. That decision has been appealed to the Divisional Court (Divisional Court File No. 533/16). I find the Mandel decision very persuasive in its logic, but will nonetheless determine the threshold issue so that it will be clear which party is “successful” on the non-pecuniary damages issue regardless of which version of s. 267.5(9) applies.
[8] Section 267.5(5) of the Insurance Act (applicable to this 2003 accident) states that a driver is “not liable in an action in Ontario for damages for non-pecuniary loss... unless as a result of the use or operation of the automobile the injured person has died or has sustained…(b) permanent serious impairment of an important physical, mental or psychological function [emphasis added].”
The law
Section 267.5(5) of the Insurance Act states:
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.
[9] The Court of Appeal explained in Meyer v. Bright (1993), 15 O.R. (3d) 129, at para. 16, how courts should address the threshold issue. In each case, the court must sequentially answer the following three questions:
(1) Has the injured person sustained permanent impairment of a function caused by continuing injury which is physical, mental, or psychological in nature?
(2) If the answer to question number 1. is yes, is the function, which is permanently impaired, an important one?
(3) If the answer to question number 2. is yes, is the impairment of the important function serious?
The Court must focus on the effect of the injury on the Plaintiff and not just the type of injury. Justice Firestone put it this way in Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, at para. 39: “[i]t is the ‘effect of the injury’ on the person and not the ‘type of injury,’ or labels attached to it, which should be the focus of the threshold analysis.”
[10] The Plaintiff has the onus of proof to establish, on a balance of probabilities, that his alleged injuries fall within the statutory exceptions in the Insurance Act. The Plaintiff must also establish that the injuries complained of were caused by the motor vehicle collision in question: Meyer v. Bright, at para. 50; Page v. Primeau, 2005 CarswellOnt 5919, at para. 11 (Ont. S.C.). The usual test is the “but for” causation test: Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181. I see no reason to depart from the “but for” causation test in the present circumstances.
[11] The term “permanent serious impairment of an important physical, mental or psychological function” is defined by regulation: O. Reg. 461/96, s. 4.2. Although this section applies to accidents that occurred after the date of the collision in this case, it is nonetheless a helpful interpretative aid that appears to reflect the case law. It states:
[12] A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- The impairment must,
(i) substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
(ii) substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
(iii) substantially interfere with most of the usual activities of daily living, considering the person’s age.
- For the function that is impaired to be an important function of the impaired person, the function must,
(i) be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
(ii) be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
(iii) be necessary for the person to provide for his or her own care or well-being, or
(iv) be important to the usual activities of daily living, considering the person’s age.
- For the impairment to be permanent, the impairment must,
(i) have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
(ii) continue to meet the criteria in paragraph 1, and
(iii) be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
[13] See Firestone J.’s decision in Valentine v. Rodriguez-Elizalde for further edification on the breadth and meaning of this regulation.
The evidence
[14] Mr. Nguyen immigrated to Canada from Vietnam in 1994. Then, he sponsored his family to join him here in 1995. He testified that his life before the accident was good. He was in good health and enjoyed activities with his family, including attending church, spending time with his children, going to the mall, going for drives, and going out for dinner. He also socialized with friends. Around that time, he also worked an unknown number of hours and days picking worms. Mr. Nguyen’s wife and daughter both testified that Mr. Nguyen’s pre-accident life at home was normal and happy. The parties agreed that Mr. Nguyen had no relevant pre-existing medical conditions.
[15] In 2001 and 2002, Mr. Nguyen worked as a cleaner and as a driver for a rehabilitation clinic. His hours were variable, but the evidence reveals that he worked an average of approximately 16 hours per week. His wife did most of the household chores, but sometimes he went grocery shopping with her and helped clean the house.
[16] On January 14, 2003, the Defendant’s vehicle struck the rear of the Plaintiff’s vehicle at approximately 50 km/h. Mr. Nguyen’s head and left eye hit the steering wheel. An ambulance brought him to the hospital as a precaution and he was released a few hours later. The ambulance attendant rated the injury as a 1 out of 4 in terms of severity, with number 1 being the least severe.
[17] Mr. Nguyen’s evidence was that he began to experience a variety of symptoms after the accident, including headaches, back pain, trouble sleeping, memory loss, fatigue, and a generally abnormal mental state. He said his condition fluctuates. His wife and daughter gave evidence that Mr. Nguyen was angrier after the accident and talked to them less. He required assistance with eating and cleaning. In 2012, the Ministry of Transportation suspended his driver’s licence because of apparent cognitive impairment.
[18] Since 2015, Mr. Nguyen lives by himself. He makes his own meals, cleans his apartment, manages his money, takes medication, and navigates the TTC to get to appointments. He has traveled by himself to Vietnam several times, including after he started to live on his own. It appears he did not require any assistance with arranging this travel.
[19] The Defendant tendered video surveillance recorded on dates between 2004 and 2017 showing the Plaintiff engaged in various physical activities. On August 20 and 23, 2004, Mr. Nguyen is seen loading items into a van. He agreed that he loaded, drove, and unloaded the van on both days to help a friend move. On November 16, 2005, he is seen at a car repair shop next to Imperial Auto where he said he went to change the oil in his car. On October 7 and 31, 2008, he is seen using public payphones even though his wife had told his doctor that he was unable to use the phone. On April 23, 2017, a few weeks before the trial, he is seen attending a pickup location where worm pickers for the Ontario Nightcrawlers company congregate before heading to their daily worksite. Additionally, on March 10, 2011, he is seen walking with his wife from a taxi to a medical appointment and grimacing and almost falling over a couple of times.
[20] The Plaintiff’s medical evidence comprised clinical notes from his physician Dr. Nguyen and the testimony of his expert witness, psychiatrist Dr. Mortimer Mamelak. Dr. Nguyen’s clinical notes included many observations between June 2003 and September 2006 that Mr. Nguyen looked depressed, was depressed, or similar notations to that effect. Dr. Mamelak’s diagnosis, based on meetings with Mr. Nguyen between October 2007 and 2012, three meetings in 2016-2017, and his review of other medical reports, was that Mr. Nguyen suffers from major depressive disorder, chronic pain disorder, and post-traumatic stress disorder.
[21] Dr. Mamelak testified that motor vehicle collisions often have an initial component of physical pain that sets in motion a downward train of events in a person’s life that can have negative mental health consequences. He asserted that Mr. Nguyen could not sustain regular employment because he could only do small tasks, not complex ones, and could not do them as efficiently and reliably as another worker. Dr. Mamelak testified that Mr. Nguyen could not live alone without assistance. He concluded that Mr. Nguyen’s problems would continue indefinitely.
[22] The Defendant’s medical evidence included the following. Neurologist Dr. Garry Moddel testified that, based on the results from an EEG, a CT scan, and a physical examination, Mr. Nguyen had no organic pathology. His report stated that Mr. Nguyen’s difficulties are on a “functional non-organic basis” and he opined that Mr. Nguyen’s issues were not caused by the collision. Clinical neuropsychologist Dr. Robyn Stephens testified that she was unable to properly assess Mr. Nguyen’s cognitive functioning because he failed the “validity tests” designed to demonstrate whether the test-taker is putting in a valid effort. She asserted that he was functioning at a low average to average level and the results that she did obtain underestimated his actual potential. Psychiatrist Dr. Brian Hoffman’s report was read into the record. He concluded a differential diagnosis of (1) unresolved grief reaction to the deaths of relatives in Vietnam, (2) a potential psychotic disorder, (3) a malingering diagnosis, and (4) chronic pain disorder that did not appear to limit his functioning. He did not believe Mr. Nguyen suffered a permanent and serious psychiatric injury as a result of this accident.
Analysis
[23] The parties agreed that whatever physical injuries Mr. Nguyen sustained because of the collision resolved within a few months after the collision. The issue is whether his alleged mental and/or psychological problems are caused by the collision and whether they are permanent, serious, and to an important function. I accept that depression can affect an important function or functions, including a person’s cognitive functioning generally. However, while the evidence may support the proposition that Mr. Nguyen has experienced depression since the collision, I am not persuaded that his impairment is permanent and/or serious.
[24] Depression is a mental illness that is diagnosed primarily on the basis of a patient’s subjective reporting of his or her symptoms to a psychiatrist. I therefore do not place a great deal of weight on the medical imaging results (EEG, CT, and Spec Scan (done by Dr. Mamelak)) indicating that Mr. Nguyen does not have an organic brain injury. Indeed, the parties agreed that Mr. Nguyen has no organic brain injury. However, with respect to the interpretation of Mr. Nguyen’s subjective reporting, I prefer the evidence of Dr. Stephens, Dr. Moddel, and Dr. Hoffman to that of Dr. Mamelak and Dr. Nguyen. In my view, Mr. Nguyen is exaggerating the level of impairment from whatever mental or psychological injuries he has suffered and his impairment is neither permanent nor serious.
[25] While I do not entirely discount Dr. Mamelak’s evidence, he inappropriately crossed the line by vociferously advocating on behalf of the Plaintiff before the jury rather than acting as an independent impartial expert. His subjective advocacy greatly diminished his credibility. The gulf between Dr. Mamelak’s categorical assertions about Mr. Nguyen’s capabilities and Mr. Nguyen’s actual capabilities as revealed in the evidence undermines the weight that can be given by me to his testimony. In particular, I do not accept Dr. Mamelak’s evidence regarding Mr Nguyen’s permanent serious injury for the following reasons.
[26] First, Dr. Mamelak told the jury that they could rely upon the Ontario Disability Support Program’s (ODSP) decision that Mr. Nguyen was disabled as evidence that Mr. Nguyen is disabled. The jury are of course required to come to their own conclusions about Mr. Nguyen’s alleged impairment and should not be relying upon the finding of an administrative decision-maker in another context. By encouraging the jury to rely upon the ODSP finding, Dr. Mamelak adopted the role of advocate for Mr. Nguyen and stepped outside of his role as expert witness. As a very experienced psychiatrist and seasoned expert witness, he should know better than to make such a suggestion to the jury. It was completely inappropriate and I instructed the jury to disregard this comment in no uncertain terms.
[27] Second, Dr. Mamelak dismissed out of hand the reliability of the trial video surveillance evidence, while telling the jury that he was of the view that surveillance evidence should never be admissible in civil trials. His wholesale rejection of an entire category of evidence that is regularly and properly admitted into evidence colours his credibility. To be clear, it would have been entirely appropriate for Dr. Mamelak to confine his comments to testifying as to why Mr. Nguyen’s actions in the videos might be consistent with his diagnosis. Instead, Dr. Mamelak simply testified that the surveillance evidence had no value whatsoever and should be disregarded. This was indicative of his tendency to simply dismiss out of hand rather than to seriously engage head-on the evidence that the Defendant argued undermined Mr. Nguyen’s claims. I, again, had to tell the jury to disregard this intemperate remark.
[28] Third, Dr. Mamelak clearly has strong views about the statutory accident benefits regime in Ontario and the role of insurance companies. His repeated references to the actions of the insurance company were irrelevant to the evidence he was qualified to give, namely his observations and medical conclusions about Mr. Nguyen. As a doctor who has presumably dealt with many statutory accident benefits and tort claims in the past, it is understandable that Dr. Mamelak might have developed opinions about these regimes. The problem is that his evidence about Mr. Nguyen’s alleged impairment appeared to be strongly coloured by these opinions. He made several unprompted references to his disagreement with insurers and appeared to reflexively place much of the blame for Mr. Nguyen’s current situation on the insurance industry.
[29] Fourth, Dr. Mamelak was brusquely dismissive of the Defendant’s medical evidence and did not seriously challenge the findings of Dr. Stephens and Dr. Hoffman. He described Dr. Hoffman’s suggestion that Mr. Nguyen was still grieving for the death of his family members in Vietnam as “nonsense”. Against the backdrop of Dr. Mamelak’s claim of nonsense, it was ironic that Mr. Nguyen broke down on the stand when describing the deaths in his family. I agree with counsel for the Plaintiff that this does not indicate that the death of Mr. Nguyen’s family members caused his current complaints, but Dr. Mamelak’s curt dismissal indicates that he was not prepared to seriously engage with Dr. Hoffman’s opinion on this and other points. Similarly, his major critique of Dr. Stephens was that her results amounted to little given the invalidity in the scores, but he did not really address Dr. Stephen’s conclusion that Mr. Nguyen was not putting in a valid effort and was exaggerating his impairment. His superficial dismissal of both experts’ conclusions betrayed his subjectivity and damaged his credibility.
[30] Fifth, as mentioned, Dr. Mamelak at times acted as an advocate for Mr. Nguyen rather than as an independent and impartial expert to assist the court. The gulf between Mr. Nguyen’s claimed level of near-total disability and his apparent level of actual ability was stark. Dr. Mamelak testified that Mr. Nguyen was completely incapable of living alone, caring for himself, and working in any permanent employment. The evidence indicated that Mr. Nguyen had helped a friend move, has lived by himself for several years, and made several independent multi-month trips to Vietnam. Dr. Mamelak could have revised his opinion to state that perhaps Mr. Nguyen was capable of part-time employment, or was something less than completely disabled, but he remained steadfast and obdurate in his views in the face of this diametrically opposed evidence.
[31] I would now like to make a few brief comments about the plaintiff’s family physician Dr. Nguyen, who unfortunately passed away in 2007. His clinical notes and records were filed as an exhibit for the truth of their contents as they relate to his observations and opinions concerning Mr. Nguyen. Most of his comments fall into the category of observations such as “[Mr. Nguyen] looks depressed” (August 19, 2003) or “confused” (June 8, 2005). Sometimes his note reads “severe cognitive impairments” (May 12, 2005). In contrast, Dr. Nguyen completed a document dated May 7, 2003, which suggested that Mr. Nguyen was not substantially disabled from performing most activities of daily living (Exhibit 5). Given the brevity of his comments in his clinical notes and the fact that most of his comments were observations and not opinions, I do not place a great deal of weight on Dr. Nguyen’s evidence concerning Mr. Nguyen’s depressive state of mind.
[32] In light of the problems with Dr. Mamelak’s evidence alone, I would conclude that the Plaintiff has not met his onus of establishing permanent and serious psychological impairment on a balance of probabilities. When Dr. Moddel, Dr. Stephens, and Dr. Hoffman’s evidence is considered, that conclusion is significantly reinforced.
[33] Dr. Moddel is a neurologist who conducted a physical exam of Mr. Nguyen, interviewed him, and referred him for medical imaging. Dr. Moddel’s conclusion was that Mr. Nguyen’s “difficulties are on a functional non-organic basis.” Dr. Moddel testified that the collision would not have caused Mr. Nguyen’s issues and that Mr. Nguyen’s presentation to him was so bizarre that he thought it was highly likely he was malingering.
[34] Dr. Stephens is a clinical neuropsychologist who interviewed Mr. Nguyen and interpreted several neuropsychological tests which he took. Although she opined on causation and depression, her main role was to assess Mr. Nguyen’s cognitive functioning. At the end of the day, regardless of whether Mr. Nguyen is depressed, the question on this threshold issue is his level of impairment. I accept her evidence that Mr. Nguyen did not put forth a valid effort on her testing. He failed the validity tests, which are designed to be passed even by persons with more severe mental illness than Mr. Nguyen alleges he has, including persons with dementia. Her evidence was that Mr. Nguyen’s results underestimated his actual potential, that he has no reduced processing speed, and no reduced or impaired learning or reasoning skills. In short, Dr. Stephens concluded that Mr. Nguyen was not cognitively impaired. She also testified that the issues that Mr. Nguyen was facing, and the treatment recommendations she made, were not connected to the accident and that he did not have depression.
[35] Excerpts from psychiatrist Dr. Hoffman’s report were read into the record. Dr. Hoffman assessed Mr. Nguyen in a psychiatric consultation for the emotional and disability consequences of the collision. He interviewed Mr. Nguyen through an interpreter, interviewed his wife, and reviewed existing medical reports and notes. Dr. Hoffman stated that Mr. Nguyen’s presentation was unusual and he was unwilling or unable to respond to his questions. He concluded that, from a psychiatric point of view, Mr. Nguyen’s issues were not limiting his functioning. His opinion was that any difficulties from the accident would have only resulted in a brief exacerbation of emotional difficulty and he would have returned to his baseline level within three or four months after the accident. Dr. Hoffman suspected “a degree of malingered symptomatology.” He concluded: “I do not believe that Mr. Nguyen has suffered a serious and permanent psychiatric injury from the effects of this accident.”
[36] I will also comment briefly on the plaintiff’s evidence at trial. Mr. Nguyen was a vague and inaccurate historian. His memory was weak—as he repeatedly told the court, sometimes he remembers and sometimes he does not. Sometimes he feels good and sometimes he does not. Mr. Nguyen’s amorphous and uncertain evidence, when he did give evidence (on many points he simply did not remember), is not particularly reliable. The fact that the plaintiff could recall the name and age of his wife without major difficulty during cross-examination but could not recall those same facts to Dr. Hoffman during his September 26, 2013 interview or while testifying under oath at his August 12, 2013 arbitration was quite disturbing. Those aspects of his evidence deleteriously impacted his credibility in my eyes. Similarly, Dr. Hoffman also characterized Mr. Nguyen’s lack of accurate responses in the negative.
[37] With respect to Mr. Nguyen’s activities of daily living, the evidence was that he has lived by himself for the past three years. He cooks for himself, cleans the apartment, manages his money, arranged a lease for his apartment, navigates public transit to attend appointments, and has traveled internationally on several occasions by himself.
[38] Moreover, there is significant surveillance evidence of the plaintiff performing activities of daily living which belie his court testimony. In stating that, I am mindful of the fact that, as Mr. Cozzi has pointed out, the surveillance only constitutes mere snapshots against the backdrop of the hundreds of days which have gone by since the accident.
[39] Whatever his challenges, the evidence does not indicate that Mr. Nguyen is permanently and seriously impaired in an important psychological function at the present time pursuant to the test set out in s. 267.5(5)(b) of the Insurance Act. The evidence clearly reflects that Mr. Nguyen has been exaggerating his level of impairment and that he retains the ability to engage in manual labour. Any impairment he has does not substantially interfere with his ability to work and engage in the usual activities of daily living, so that his impairment, if any, cannot be considered to be serious. I also accept the evidence of Dr. Moddel, Dr. Stephens, and Dr. Hoffman that Mr. Nguyen does not have a permanent injury.
[40] For these reasons, I find that Mr. Nguyen’s evidence does not support the conclusion that he sustained a permanent, important, and serious psychological injury as a result of the collision. It may be that Mr Nguyen suffered from depression for a period of time after the accident. But based upon the totality of the evidence, his depression was neither a permanent nor serious psychological injury arising from the accident of January, 14, 2003. The Defendant’s threshold motion is granted.
Costs
[41] The only issue remaining before I can address costs is the statutory deduction for collateral benefits for the jury’s award of damages for loss of income.
[42] Pursuant to s. 267.8(1) of the Insurance Act, a Plaintiff’s damages for income loss “shall be reduced” by “[a]ll payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity.” The Plaintiff received income replacement benefits from January 21, 2003 to February 4, 2004 in the amount of $97.83 per week, totalling $5,272.72. They were not available for the first seven days after the accident. Counsel for the Plaintiff does not dispute that his client received these amounts and the nature of the benefits. Pursuant to s. 267.8(1), the Plaintiff’s net damages for loss of income are therefore zero. I consequently need not consider the application of s. 267.5(1) 2.i of the Insurance Act.
[43] The Plaintiff cites several decisions in which our courts, in order to determine costs, looked to the non-pecuniary damage award before taking into account the relevant statutory deductible: see e.g. Rider v. Dydyk (2007), 87 O.R. (3d) 507, 2007 ONCA 687; Dennie v. Hamilton (2008), 89 O.R. (3d) 542; Ksiazek v. Newport Leasing Ltd. (2008), 61 C.C.L.I. (4th) 70. These decisions do not assist the plaintiff because the defendant’s threshold motion was successful and therefore there has been no recovery.
[44] Combined with my conclusion on the threshold issue, the Plaintiff’s damages in this case are therefore reduced to zero. Judgment is granted in favour of the Defendant.
[45] The Plaintiff made one offer to the Defendant to settle the claim for a total of $150,000 plus costs. This offer was open to the trial. The Defendant offered to go out without costs but withdrew this offer before the trial started.
[46] As Justice David Brown stated in Clark v. Zigrossi, 2010 ONSC 6357, 99 C.P.C. (6th) 179, at para. 4, the general principle is that “costs should follow the cause”. In Clark, he found that the defendant was entitled to costs on a partial indemnity scale because of his successful defence of the action.
[47] In Arteaga v. Poirier, 2016 ONSC 6628, DiTomaso J. reduced the jury’s pecuniary award for housekeeping benefits to zero in accordance with the Insurance Act, s. 267.8 and determined that the judgment amounted to zero. Justice DiTomaso concluded, at para. 39, that “the Defendants are the successful parties and are entitled to their costs on a partial indemnity scale. In this case, the general principle that costs should follow the cause applies. They successfully defended this action.” Justice DiTomaso also summarized the relevant principles for a cost determination, including that the cost award should be “fair and reasonable” and should “take into account the expectations of the parties”: Arteaga, at para. 51. The court need not undertake a line-by-line analysis of hours claimed and should consider what is reasonable in the circumstances in a global fashion: Arteaga, at para. 52. I agree with Justice DiTomaso’s reasoning.
[48] The Plaintiff shall pay the costs and disbursements to the defendant in the amounts agreed to between the parties. The Plaintiff shall pay costs of $90,790, inclusive of HST, and disbursements of $71,000, inclusive of HST.
Archibald J.
Released: June 22, 2017