COURT FILE NO.: 12-56112
DATE: 2018/04/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TATIANA NEMCHIN
Plaintiff
– and –
YVONNE GREEN
Defendant
Joseph Obagi and Adam Aldersley, for the Plaintiff
Thomas Ozere, counsel for the Defendant
HEARD: November 14, 2017
post-trial RULING
Prejudgment Interest and Assignment of Collateral Benefits
CORTHORN J.
Introduction
[1] Tatiana Nemchin was injured in a car accident in December 2010. She commenced this action in November 2012. In April 2017, at the conclusion of trial, the jury rendered its verdict. The damages awarded include:
• General non-pecuniary damages in the amount of $125,000; and
• Damages for loss of future income in the amount of $600,000.
[2] Each of those amounts is subject to a reduction, based on the jury’s finding that the plaintiff was contributorily negligent (10 per cent).
[3] Three issues remain to be determined:
The prejudgment interest rate applicable to the non-pecuniary damages awarded;
Whether the defendant is entitled to an assignment with respect to collateral benefits that the plaintiff was, as of the date of trial, receiving from her long-term disability insurer; and
Costs of the action.
[4] The first two issues must be determined before the parties are in a position to attempt to resolve or, if necessary, make submissions with respect to the issue of costs. In this ruling, I address only the first and second issues.
Issue No. 1 – Prejudgment Interest Rate
a) State of the Law
[5] The prejudgment interest rate applicable to non-pecuniary damages in personal injury actions was the subject of numerous decisions in 2015, 2016, and 2017. The proliferation of decisions arose because of a recent amendment to the Insurance Act, R.S.O. 1990, c. I.8 (“Act”), with respect to the prejudgment interest rate for non-pecuniary damages (“Amendment”).
[6] The effect of the Amendment, which came into force on January 1, 2015, is that the prejudgment interest rate applicable to non-pecuniary damages is:
a) No longer five per cent per year; and
b) To be determined on the basis of ss. 127 and 128(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).
[7] The Amendment did not eliminate the discretion of the court pursuant to s. 130 of the CJA to:
a) Increase or reduce the prejudgment interest rate prescribed under those sections;
b) Change the period over which interest is calculated; or
c) Disallow interest altogether.
[8] The recent decisions address whether the Amendment has retrospective effect and therefore applies to actions commenced prior to January 1, 2015.
[9] The parties to this action agree that the issue of retrospective versus prospective effect of the Amendment was settled by the Ontario Court of Appeal in Cobb v. Long Estate, 2017 ONCA 717, 416 D.L.R. (4th) 222 and El-Khodr v. Lackie, 2017 ONCA 716, 416 D.L.R. (4th) 189. It is more accurate to say that the parties agree that the issue is settled for the moment. When this motion was argued, the decision in El-Khodr, including with respect to prejudgment interest, was the subject of an application for leave to appeal to the Supreme Court of Canada.
[10] In this matter, the post-trial appearance on the issues of prejudgment interest and collateral benefits was adjourned once−in anticipation of the decision of the Court of Appeal in El-Khodr. The parties require finality in this matter; they agreed to proceed with the post-verdict motions without waiting for any potential further decision in El-Khodr on the issue of prejudgment interest.
b) Positions of the Parties
[11] Pursuant to ss. 127 and 128(1) of the CJA, the prejudgment interest rate applicable to the non-pecuniary damages awarded to the plaintiff is 1.3 per cent per year. The defendant’s position is that there is no basis for the court to exercise its discretion pursuant to s. 130 of the CJA and award prejudgment interest at any other rate. The defendant submits that the prejudgment interest to which the plaintiff is entitled is $6,462.58.
[12] The plaintiff argues that there are a number of factors in this case to support a departure from the default rate (1.3 per cent). The plaintiff asks the court to award prejudgment interest calculated on the basis of:
• A blended rate of 3.15 per cent for the entire period ($17,109.25); or
• Five per cent from December 3, 2012 to December 31, 2014 and 1.3 per cent from January 1, 2015 to the date of the jury’s verdict ($16,634.59).
[13] The figures set out immediately above do not take into consideration the reduction of the $125,000 awarded for non-pecuniary damages on the basis of the finding of 10 per cent contributory negligence. The defendant’s figure of $6,462.58 takes that reduction into account.
c) The Exercise of Discretion
[14] Section 130(2) of the CJA sets out six specific factors and one catch-all factor to be considered by a trial judge when asked to exercise his or her discretion to depart from the default prejudgment interest rate:
a) Changes in market interest rates;
b) The circumstances of the case;
c) The fact an advance payment was made;
d) The circumstances of medical disclosure by the plaintiff;
e) The amount claimed and the amount recovered in the proceeding;
f) The conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding; and
g) Any other relevant consideration.
[15] The plaintiff relies on the factors listed in paragraphs (b) and (e) above. In addition, the plaintiff relies on a perceived unfairness to the plaintiff because the defendant will receive a windfall if prejudgment interest is awarded at the rate of 1.3 per cent.
[16] The defendant argues that none of the factors are present; therefore, the court should not exercise its discretion to depart from the default interest rate.
d) Analysis
[17] The purpose served by an award of prejudgment interest was summarized by the Court of Appeal at paragraph 86 of its decision in Cobb:
Prejudgment interest is meant to compensate for the loss of use of money’s worth from the date when the injury is sustained to the time of judgment. The goal is to fairly compensate an injured party and to restore to him or her, so far as money is able to do, all that he or she has lost as result of the injury – but neither too much, nor too little. The provisions of the Courts of Justice Act concerning prejudgment interest do this by preserving the court’s discretion not to apply the default rate.
[18] The prejudgment interest rates prescribed by the CJA, are based on the bank rate, at the applicable time, rounded to the nearest tenth of a percentage point. The default rate prior to 2011 varied from a high of 4.5 per cent in the first quarter of 2008 to 3.3 per cent in the final quarter of 2008 and 0.5 per cent for six quarters in 2009 and 2010. The plaintiff relies on the varying default rate in her calculation of the suggested “blended rate” of 3.15 per cent.
i) Decision at Trial in Cobb
[19] The plaintiff argues that this case is similar, if not identical, to the fact situation before the trial judge in Cobb. In that case, the trial judge exercised his discretion and awarded prejudgment interest at the rate of 3 per cent (a blended rate: see Cobb v. Long Estate, 2015 ONSC 6799, 261 A.C.W.S. (3d) 103).
[20] The defendant submits that Cobb is distinguishable on its facts. I agree.
[21] First, there is the timing of the decision of the trial judge in Cobb–in terms of the trial judge’s schedule and the status of the appeal in El-Khodr. The trial judge in Cobb was aware that the decision of the trial judge in El-Khodr was under appeal as related to the latter’s conclusion that the Amendment does not apply retrospectively.
[22] The trial judge in Cobb retired two days after hearing the submissions on prejudgment interest. His historical practice was to defer the release of a decision until after the decision in the pending appeal of a relevant case was released. With no date yet set for the appeal in El-Khodr, however, the trial judge in Cobb was concerned that he would be functus by the time the appeal decision was released.
[23] In that setting, the trial judge in Cobb exercised his discretion to award prejudgment interest based on a blended rate. In doing so, he considered a number of the factors pursuant to Section 130(2) of the CJA. At paragraph 24 of his ruling, the trial judge highlighted that there had been no advance payment (factor (c)). He considered “the overall circumstances of the case” (factor (b)). The trial judge did not identify any other factors enumerated in s. 130(2) of the CJA.
[24] The trial judge noted that seven years had passed from the date of the collision to the date of trial. That is the same number of years that passed between the date of the collision and the date of the trial in the action before me.
[25] There was no finding made by the trial judge in Cobb that either of the parties contributed in any way to a delay in the progress of the action over that seven-year period. There is no evidence in the matter before me to support a finding that either of the parties contributed to a delay in the progress of the action.
[26] A second distinguishing feature of Cobb is that on the appeal the defendant estate did not take issue with the blended interest rate of 3 per cent. At trial the defendant had submitted that the prejudgment interest rate should be 0.5 per cent (the default rate). The plaintiff had requested a rate of 5 per cent.
[27] Third, the non-pecuniary general damages awarded in Cobb were $220,000. That amount is approximately double the amount awarded to the plaintiff in the action before me, when $125,000 is reduced by 10 per cent for contributory negligence.
[28] In summary, the trial decision in Cobb does not support the exercise of my discretion with respect to the prejudgment interest rate.
ii) [Section 130(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) of the [CJA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html)
[29] I turn to the factors enumerated in s. 130(2) of the CJA and address them in order. Factor (a) is changes in market rates. Neither party led any evidence as to changes in market rates from either 2010 or 2012 to the spring of 2017. There is no evidence before me of the potential returns on investment the plaintiff could have achieved, from 2010 or 2012 to the spring of 2017, if she had use of the non-pecuniary damages awarded. I am therefore not in a position to consider factor (a).
[30] The plaintiff submits that the circumstances of the case (factor (b)) give rise to unfairness because her accident occurred and her action was commenced at a time when the applicable prejudgment interest rate was 5 per cent. The suggested unfairness relates to all actions commenced prior to January 1, 2015. The plaintiff has not identified anything other than the timing of the Amendment under factor (b).
[31] In absolute terms, the difference between prejudgment interest calculated at 1.3 per cent and that calculated on the basis of either of the blended rates proposed by the plaintiff is approximately $10,000. When considered in the context of a total jury award of $652,500 (($125,000 + $600,000) x 0.9), the difference in prejudgment interest represents 1.5 per cent of the award. I find that the dollar amount of $10,000, in either absolute terms or as a percentage of the jury award, does not constitute a windfall to the defendant.
[32] In Cobb, the trial judge considered the passage of time from the date of the collision to the date of trial (seven years, as in the action before me). I place greater emphasis on the passage of time between the date the action was commenced and the date of the decision at trial (the jury’s verdict in the action before me). I do so because only once the action is commenced does anyone other than the plaintiff play a role in how quickly or slowly the matter progresses.
[33] In this case, 4.5 years passed from the date the action was commenced to the date of the jury’s verdict. Rightly or wrongly, that is not an unusual amount of time between those two events in personal injury actions.
[34] In this or any other action, the circumstances of the case include changes in the default rate over time. There has not been a significant change to the default rate since 2012. For all of 2011, 2012, 2013, and 2014 and for the first quarter of 2015, the default rate was 1 per cent. In 2016 and 2017, the default rate was 0.5 per cent. If anything, those changes favour the defendant’s position, not the plaintiff’s.
[35] In summary, I find nothing about “the circumstances of the case” to support the exercise of my discretion pursuant to Section 130(2) of the CJA.
[36] Turning to factor (c), there was no advance payment made. Although the plaintiff was, as of the date of trial, in receipt of long term disability (“LTD”) benefits, her entitlement to them was initially questioned. The plaintiff had to resort to litigation against the LTD insurer to establish her entitlement to the benefits. The lack of an advance payment is a factor to consider in this case.
[37] Neither party made any submissions with respect to factor (d): medical disclosure by the plaintiff.
[38] The plaintiff relies on factor (e): “the amount claimed and the amount recovered in the proceeding”. The plaintiff claimed non-pecuniary damages of $150,000. She was awarded $125,000 (83.3 per cent of the amount claimed). After contributory negligence is addressed, the plaintiff’s net recovery is $112,500 (75 per cent of the amount claimed). The plaintiff did not over-reach with respect to her claim for non-pecuniary damages.
[39] The plaintiff submits that the defendant, having disputed the plaintiff’s entitlement to non-pecuniary damages, should not be entitled to benefit from the Amendment by receiving a saving on prejudgment interest. The defences in this action included causation. I find there was nothing out of the ordinary in the defendant advancing a causation defence. While that defence did not ultimately succeed, it was not advanced as part of an “everything but the kitchen sink” approach. In the circumstances of this case, the defendant’s reliance on a causation defence does not support the exercise of my discretion pursuant to s. 130(2).
[40] In summary, the factors that potentially support the exercise of my discretion pursuant to Section 130(2) of the CJA are factors (c) and (e). I find that, in the circumstances of this action, those factors are not sufficient to support the exercise of my discretion pursuant to s. 130(2) of the CJA.
iii) Unfairness Generally
[41] The broader and alternative argument made by the plaintiff is that retrospective application of the Amendment results in unfairness to plaintiffs who were injured in accidents that occurred on or before December 31, 2014. The unfairness is said to arise because to and including December 31, 2014 insurance premiums were based on an expectation on the part of motor vehicle insurers that their insureds had exposure to prejudgment interest at the rate of 5 per cent on non-pecuniary damages.
[42] There is no evidence before me as to the extent to which insurers considered the 5 per cent prejudgment interest rate when setting premiums. There is also no evidence before me as to the impact of the Amendment on insurance premiums. Evidence from an underwriting or other insurance expert would be of assistance to the court in considering whether there is a windfall for insurers from premiums calculated and charged prior to the Amendment coming into effect.
[43] The plaintiff argues that insurers who set premiums based on a default rate of 5 per cent will now receive a windfall from any actions commenced before January 1, 2015 and not resolved as of that date. In the absence of any evidence in that regard, I am unable to make the finding requested.
e) Summary
[44] The plaintiff is entitled to prejudgment interest on the non-pecuniary damages calculated at the rate of 1.3 per cent per year.
Issue No. 2 – Assignment of Collateral Benefits
[45] The damages awarded by the jury for economic loss ($600,000) are exclusively for future loss of income. No damages were claimed for past loss of income.
[46] At the date of trial, the plaintiff was receiving LTD benefits. The plaintiff is entitled to LTD benefits to age 65, subject to her continuing to meet the test for ongoing disability under the terms of the LTD policy.
[47] The defendant requests an assignment of the plaintiff’s contractual entitlement to future LTD benefits until the earlier of when the plaintiff reaches age 65 and the portion of the judgment for loss of income awarded by the jury is exhausted.
[48] The plaintiff’s position is that the defendant lost the right to such an assignment because:
a) The defendant opposed the jury being required to answer a question in which they identified both the annual loss of income and the number of years of future loss of income; and
b) As a result, it is not possible to match, on a temporal basis, the LTD benefits received over time against a specific annualized loss of income.
[49] In response, the defendant submits that neither the relevant statutory provision nor the case law require temporal matching of the kind suggested by the plaintiff with respect to an assignment of LTD benefits.
[50] This area of the law is evolving and remains unsettled. The most recent evolution of the law with respect to deductions for and assignment of collateral benefits is reflected in the following decisions of the Ontario Court of Appeal: Gilbert v. South, 2015 ONCA 712, [2015] O.J. No. 5573; Fonseca v. Hansen, 2016 ONCA 299, 348 O.A.C. 112; Basandra v. Sforza, 2016 ONCA 251, 343 O.A.C. 193; and El-Khodr v. Lackie, 2017 ONCA 716.
[51] These issues were also addressed by the Court of Appeal in Cobb (see paragraph 9, above), a decision released at the same time as the decision in El-Khodr.
[52] For two reasons, as of the date of argument of these issues before me the law remained unsettled. First, an application had been made in El-Khodr for leave to appeal to the Supreme Court of Canada. Second, the Court of Appeal was in the process of scheduling a hearing, before a five-member panel, in Cadieux v. Saywall, 2016 ONSC 7604, 274 A.C.W.S. (3d) 840. It is anticipated that the Court of Appeal will in Cadieux address the issues of deduction and/or assignment of collateral benefits.
[53] Understandably, the parties in the matter before me require finality. They agreed to proceed with argument and request my ruling on the defendant’s motion for an assignment.
a) Statutory Provision and General Principles
[54] The defendant’s request for an assignment with respect to LTD benefits is made pursuant to s. 267.8(12) of the Act. That section addresses the potential entitlement of a plaintiff to a number of different types of collateral benefits including LTD benefits, statutory accident benefits related to income loss or loss of earning capacity, benefits under a sick leave plan related to employment, and other benefits. In support of the request for an assignment, the defendant relies specifically on s. 267.8(12)(a)(ii). It provides:
The court that heard and determined the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile, on motion, may order that, subject to any conditions the court considers just,
(a) the plaintiff who recovered damages in the action assign to the defendants or the defendants’ insurers all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident after the trial of the action,
(ii) for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
[55] The purpose of s. 267.8, as it relates to all forms of collateral benefits, is to ensure that a plaintiff in motor vehicle accident litigation does not achieve double recovery (Gilbert, at para. 43). The prevention of double recovery is, however, balanced against the concern that the plaintiff be fully compensated for their loss.
[56] The onus is on a defendant to establish entitlement to an assignment of or a trust with respect to the collateral benefits that are the subject of s. 267.8 of the Act. For the defendant to meet that onus, there must be persuasive evidence demonstrating that it is clear and beyond dispute that the plaintiff qualifies for the future benefits that are the subject of the assignment (Hoang (Litigation Guardian of) v. Vicentini, 2012 ONSC 6644 at para. 28, 225 A.C.W.S. (3d) 221 and Siddiqui v. Siddiqui, 2015 ONSC 6260 at para. 16, 262 A.C.W.S. (3d) 1032).
b) The Court of Appeal Cases
[57] In only one of the four recent cases from the Court of Appeal, were the collateral benefits at issue LTD benefits. In each of the other cases, the collateral benefits at issue were statutory accident benefits (“SABS”):
• In Gilbert, the defendant requested an assignment or trust with respect to future SABS paid for the plaintiff’s future care. At trial, the plaintiff was awarded $57,250 for future care costs including treatment, medication, rehabilitation intervention, and aids;
• The plaintiff in Fonseca was awarded $112,496 for loss of future income. The defendant appealed the decision of the trial judge restricting the assignment of LTD benefits to a period of one year. The defendant also appealed the trial judge’s decision with respect to the assignment of SABS;
• In Basandra, the issues on appeal were with respect to the reduction of damages awarded for SABS received prior to trial, including benefits paid towards future entitlements;
• The defendant in El-Khodr sought an assignment with respect to future income replacement benefits (SABS) against the damages awarded for future loss of income. The defendant also requested an assignment of future SABS with respect to medication, assistive devices, and professional services; and
• In Cobb, the collateral benefits in issue included SABS received prior to the date of trial for past and future income replacement benefits and matching them to damages awarded under separate heads for past loss of income and for future loss of income.
[58] A number of general principles arise from these recent Court of Appeal decisions. The principles relevant to the narrow issue I am required to decide are discussed in the Analysis section below.
c) Analysis
[59] In Basandra, reference is made to the “Division of Labour” between the trial judge and the jury (paras. 19 and 20). Pursuant to that division, the trial judge is solely responsible to address the impact, if any, of the plaintiff’s receipt of or entitlement to collateral benefits. That impact is determined pursuant to s. 267.8, after the jury’s verdict has been rendered.
[60] I am satisfied, based on the evidence at trial, that as of the date of the jury’s verdict the plaintiff was in receipt of LTD benefits. It is clear and beyond dispute that the plaintiff was so entitled and would remain so entitled for as long as she continues to meet the criteria for total disability pursuant to the relevant policy. The parties did not dispute that issue in argument before me.
[61] The plaintiff disputes the defendant’s entitlement to an assignment because of the manner in which the question to the jury on future loss of income was framed. The plaintiff submits that I am unable to carry out the temporal matching required between the damages awarded and the LTD benefits the plaintiff may receive in the future. The plaintiff places on the defendant the responsibility for the particular jury question.
[62] The plaintiff submits that in these circumstances, she is at risk of being under-compensated if the defendant is granted the assignment requested. For the following reasons, I disagree.
[63] First, when reaching a verdict with respect to a claim for damages for loss of future income, a jury is not required to provide the figures upon which it relies for annualized loss of income and the number of years over which the loss occurs. The defendant was within her right to request that, at a minimum, the jury be given the option to answer the question related to future loss of income with a global award.
[64] In paragraphs 81−86 of its decision in El-Khodr, the Court of Appeal makes reference to “proper jury questions” and matching monetary and temporal limits of SABS to damages awarded. Matching is required for those heads of past and future damages for which the potential for recovery of SABS exists. The relevant heads of damages include loss of income, health care expenses, and other pecuniary losses.
[65] Counsel are required to take steps to ensure that jury questions are structured in a way that permits the trial judge to carry out his or her role pursuant to s. 267.8 of the Act (Basandra, at para. 28). To that end, the questions should separate the past and future claims for each type of collateral benefit identified in s. 267.8 (Basandra, at para. 28). The separation required is into the three broad categories of benefits highlighted in El-Khodr (paras. 35 and 84).
[66] I find that there is nothing improper about the question posed of the jury in this matter with respect to the claim for damages for future loss of income. The question meets the criteria for matching established in the recent decisions of the Court of Appeal.
[67] Second, there is no requirement for temporal matching of LTD benefits received over time to an annualized amount for loss of future income. In Cobb, the Court of Appeal concluded that the total of the SABS received prior to trial, in settlement of the plaintiff’s entitlement to past and future loss of income, was to be deducted from the total of the damages awarded for past and future loss of income. That conclusion was based in part on the language or wording of s. 267.8(1) of the Act—in particular the lack of any distinction therein between pre-trial losses and post-trial losses. The Court concluded that it could not import temporal requirements that are not included in the Act.
[68] In s. 267.8(12)(a)(ii), there are no temporal requirements of the kind suggested by the plaintiff. As a result, it falls to the trial judge to determine the duration of the assignment based on the record in the particular matter: see Cobb, at para. 42 and Fonseca, at paras. 107 and 108.
[69] Third, the global award of damages for loss of future income does not preclude me from deciding the relevant issues. I am, in the circumstances of this case, able to carry out my part of the division of labour described above.
[70] Fourth, there is no risk whatsoever that the plaintiff will be under-compensated for the damages awarded for future loss of income. The defendant is only entitled to the assignment requested if she first pays the plaintiff the damages to which she is entitled for future loss of income ($540,000 ($600,000 x 0.9)). Once that payment is made, the plaintiff will be fully compensated for her loss of future income.
[71] At paragraph 69 of its decision in El-Khodr, the Court of Appeal highlighted the purpose of s. 267.8 of the Act in balancing the prevention of under-compensation and the prevention of double recovery:
The current legislation has codified the “Cox and Carter” approach. The imposition of the common-law “Cox and Carter” orders under the previous statutory regimes ensured that no risk of under-compensation was placed on the plaintiff. Instead of being subject to a deduction from her damage award for future statutory benefits, the Insurance Act now requires a plaintiff to hold in trust or to assign any benefits that she receives from her [LTD] insurer after the trial judgment. These provisions ensure that the plaintiff is fully compensated by the jury award but limit double recovery by assigning only those benefits actually received in the future to the tort insurer. If the plaintiff does not receive any [LTD] payments after trial, she loses nothing because the tort insurer simply does not recover an offset of the damages already paid to the plaintiff. That is an important distinction from the previous regime. Like the “Cox and Carter” orders, the trust and assignment provisions ensure that no risk of under-compensation passes to the plaintiff, while also minimizing double recovery.
[72] I substituted “LTD” for “SAB” in the quote above. The statements made are equally as applicable to LTD payments as they are to SAB payments.
[73] I therefore turn to the record before me.
d) The Record
[74] The defendant submits that the record supports a conclusion that the award of $600,000 for future loss of income reflects the jury’s assessment of the plaintiff’s loss of future income to at least age 65. For that reason, the defendant requests that the assignment of LTD benefits be until the earlier of when the plaintiff reaches age 65 or the full amount of the damages paid towards loss of future income is exhausted.
[75] The plaintiff submits that the damages awarded for loss of future income support a conclusion that the jury based its award on a retirement age of 60. As a result, the assignment should be until the earlier of age 60 or the full amount of the damages paid towards loss of future income is exhausted.
[76] I find that the award of damages for loss of future income reflects a retirement age of 65. I do so for the following reasons:
• The plaintiff led no evidence that she may return to gainful employment. Her claim for damages for loss of future income was premised on total and permanent disability from working;
• The plaintiff described both of her parents who, in their 70s respectively, continue to work. The plaintiff’s evidence was that prior to the December 2010 collision she had no specific plans with respect to retirement;
• The economic loss expert who testified on behalf of the plaintiff gave evidence with respect to retirement age statistics. That expert (a) included loss of income calculations to age 65 or 70, and (b) testified that 77 per cent of people retire at age 65; and
• The plaintiff had, for a small number of years prior to the accident, been working full-time and received both salary and benefits. Her previous work history reflects a much less steady pattern of work and income. I find that the jury’s award of damages for loss of future income reflects the plaintiff’s overall work history and not simply the relatively brief period prior to the collision.
[77] I find that the jury’s award is a reasonable assessment of the plaintiff’s loss of future income based on the totality of the evidence. I am able, based on the record, to “accurately determine” the portion of that award that is “mirrored” by the plaintiff’s entitlement to LTD benefits (Gilbert, at para. 48).
e) Summary
[78] I find that the defendant has met the onus to establish entitlement to the assignment requested. The assignment shall be in effect until the earlier of when the plaintiff reaches age 65 or the full amount of the damages paid towards loss of future income is exhausted.
Disposition
[79] In summary, I order that:
The prejudgment interest to which the plaintiff is entitled on the award of general non-pecuniary damages shall be calculated at the rate of 1.3 per cent per year.
The plaintiff shall assign to the defendant all of her rights in respect of her claim for LTD benefits.
The assignment shall remain in effect until the earlier of when the plaintiff reaches age 65 or the full amount of the damages paid towards loss of future income is exhausted.
The plaintiff shall co-operate with the defendant or the defendant’s insurer in any claim or proceeding brought by the defendant or the defendant’s insurer with respect to a payment assigned pursuant to paragraphs 2 and 3 above (s. 267.8(12)(b) of the Act).
[80] The LTD benefits to which the plaintiff is entitled are taxable. In the event the parties are unable to agree upon the impact of the tax treatment of the LTD benefits in the context of the assignment, they may make arrangements to appear before me to make further submissions in that regard.
Costs
[81] In the event the parties are unable to agree upon the costs of the motions with respect to prejudgment interest and the assignment, they may make written submissions or they may make submissions in the event they appear before me to argue costs of the action in its entirety.
[82] Written submissions, if made, shall be made as follows:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;
d) The submissions, the documents referred to therein, and case law and other authorities shall be on single-sided pages;
e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this ruling is released; and
f) In the event either party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.
Madam Justice Sylvia Corthorn
Released: April 5, 2018
COURT FILE NO.: 12-56112
DATE: 2018/04/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TATIANA NEMCHIN
Plaintiff
– and –
YVONNE GREEN
Defendant
POST-TRIAL RULING
Prejudgment Interest and Assignment of Collateral Benefits
Madam Justice Sylvia Corthorn
Released: April 5, 2018