Court File and Parties
COURT FILE NO.: 12-56112 DATE: 2017/06/26 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
TATIANA NEMCHIN Plaintiff – and – YVONNE GREEN Defendant
Counsel: Joseph Obagi and Adam Aldersley, for the Plaintiff Thomas Ozere, counsel for the Defendant
HEARD: June 23, 2017
Ruling
Motion No. 7 For Judgment (P.J.I. Rate)
CORTHORN J.
[1] Following the jury’s verdict in this trial, the plaintiff brings this motion for judgment. The only issue to be determined on the motion is the pre-judgment interest (“PJI”) rate applicable to the claim for general non-pecuniary damages. The plaintiff’s position is that the PJI rate to be applied in this matter is 5 per cent per year. The defendant’s position is that the applicable PJI rate is 1.3 per cent per year.
[2] The divergence in the respective positions of the parties arises because of amendments made to the Insurance Act, R.S.O. 1990, c. I.8, effective January 1, 2015.
[3] The plaintiff submits that the case law is clear in that the PJI rate is a matter of substantive law, as a result of which the amendments related to the PJI rate are not retroactive.
[4] The defendant’s position is that the case law, even if clear in that regard, is wrongly decided. The defendant highlights that the relevant issues were recently argued before the Court of Appeal in El-Khodr v. Lackie, 2015 ONSC 4766 [El-Khodr]. The decision of the Court of Appeal has not yet been released.
[5] However, the defendant also acknowledges that (a) in Carr v. Modi, 2016 ONSC 1300 [Carr], the Divisional Court concluded that the PJI rate is a matter of substantive law, (b) the decision in Carr is not distinguishable from the matter before me, and (c) based on the current state of the law, this Court is bound to follow Carr.
[6] Counsel informed me that the decision at trial in this matter is under appeal. For the purpose of the appeal and for other reasons, the parties want the judgment issued and entered even though the decision of the Court of Appeal in El-Khodr is pending.
[7] The parties have agreed to proceed as follows:
a) The judgment is to be issued on the basis of a PJI rate of 5 per cent per year, with the amount of the PJI agreed at $27,123.29 prior to apportionment based on the finding of contributory negligence against the plaintiff (10 per cent);
b) Taking into consideration the damages awarded, PJI on non-pecuniary general damages at the rate of 5 per cent per year, and apportionment of liability in accordance with the jury’s verdict, the total monetary amount of the judgment (exclusive of costs) is $716,060.96;
c) The applicable post-judgment interest rate is 2 per cent per year;
d) In the event the decision of the Court of Appeal in El-Khodr impacts the calculation of PJI on the damages awarded in this matter:
i) The parties will deal with the matter at that time; and
ii) If the parties are unable to reach an agreement in that regard, they shall make arrangements to appear before me to address the matter.
Order
[8] For the reasons set out above, judgment shall be issued and entered on the following terms:
The defendant shall pay to the plaintiff the sum of $716,060.96, inclusive of pre-judgment interest.
If the parties cannot reach an agreement on costs, costs submissions are to be exchanged and delivered in accordance with this Court’s further direction on the matter.
The judgment bears post-judgment interest at the rate of 2 per cent per year.
Madam Justice Sylvia Corthorn
Released: June 26, 2017