COURT FILE NO.: 14-59774
DATE: 2019/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
MARK ROLLEY, JOCELYN ROLLEY, EMILY ROLLEY, BENJAMIN ROLLEY, JOSEPH ROLLEY, TOMMY PAUPST AND ANGEL PAUPST
Plaintiffs
– and –
DOROTHY MACDONELL and BELAIR INSURANCE COMPANY INC.
Defendants
Joseph Obagi and Christopher Obagi, counsel for the Plaintiffs
Kirk Boyd and Sandra Lebrun, counsel for the Defendant, Dorothy MacDonell
HEARD: May 1, 2019
Ruling on post-Trial motion
Assignment of collateral benefits
CORTHORN J.
Introduction
[1] At the conclusion of a ten-week trial, the plaintiffs in this action were awarded damages totalling approximately $2,000,000: see Rolley v. MacDonell, 2018 ONSC 6517. Included in the damages awarded is the cost of future health care services, therapy, and devices for Mark Rolley. Those items include attendant care, occupational therapy, prism glasses, and vision therapy.
[2] Mr. Rolley is entitled to Statutory Accident Benefits (“SABS”) from his motor vehicle insurer. The SABS to which Mr. Rolley is entitled include those for medical and rehabilitation benefits, as well as attendant care benefits (“health care benefits”). As of the conclusion of the trial, Mr. Rolley was continuing to claim SABS from his motor vehicle insurer.
[3] Following the release of the reasons for judgment, the defendant brought a motion for a conditional assignment order. Mr. Rolley does not dispute the defendant’s entitlement to such an order.
[4] The parties disagree, however, as to the effective date of the assignment. The defendant argues that the effective date of the assignment is the date of the reasons for judgment, November 1, 2018. Mr. Rolley’s position is that the effective date of the assignment is the date on which the judgment is paid in full (i.e., damages, plus pre-judgment interest and costs).
Analysis
[5] The defendant’s motion in this action was heard at the same time as a motion by the defendant in Nemchin v. Green for similar relief.
[6] In Nemchin, an order for the assignment of collateral benefits had already been made: see 2018 ONSC 2185, 140 O.R. (3d) 668 (“Nemchin (No. 1)”). Subsequent to the date on which the assignment order was made, the defendant’s appeal from the verdict at trial in that action was heard and dismissed (Nemchin v. Green, 2019 ONCA 634).
[7] Also subsequent to the date on which the assignment order was made in Nemchin, the Court of Appeal released its decision in Carroll v. McEwen, 2018 ONCA 902, 143 O.R. (3d) 641.
[8] Relying on the decision in Carroll, the defendant in Nemchin requested that the assignment order be amended to address the effective date of the assignment. The defendant in Nemchin argued that the assignment is effective as of the date of the verdict at trial. In response, the plaintiff submitted that the effective date of the assignment is the date on which the judgment is paid.
[9] The rulings on the motion in Nemchin and on this motion were deferred until the outcome of the appeal in Nemchin was known. The Court of Appeal released their decision on July 31, 2019.
[10] The ruling on the more recent motion in Nemchin was released on the same date as this ruling: see Nemchin v. Green, 2019 ONSC 6243 (“Nemchin (No. 2)”). That ruling includes analysis of the issues relevant to the outcome of the motion by the defendant in this action for an assignment order. I do not repeat that analysis in this ruling.
[11] For the reasons set out in Nemchin (No. 2), I agree with the defendant. The effective date of the assignment is the date of the reasons for judgment. The assignment is, however, conditional upon—and therefore triggered by—the payment of the judgment in full, including damages, pre-judgment interest, and costs.
[12] The defendant is entitled to a credit for payments of SABS health care benefits to which Mr. Rolley has the right from the date of reasons for judgment to the date of payment of the judgment. Lastly, Mr. Rolley is entitled to reimbursement from the defendant for the reasonable costs he incurs during that period in maintaining or preserving his right to payment of SABS for health care expenses.
[13] The decision at trial in this matter is under appeal. The defendant takes the pending appeal into consideration in the language of the relief requested on the motion. I see no reason to take the pending appeal into consideration in the wording of the assignment order. The judgment is stayed as a result of the appeal from the decision at trial. The ancillary, assignment order cannot be enforced pending the outcome of the appeal.
[14] The terms of the assignment order are framed as if the order had been made soon after the release of the reasons for judgment and without consideration of the pending appeal.
Disposition
[15] The defendant’s motion for a conditional assignment order is granted. The terms of the assignment order are:
Within 30 days of the date of this ruling, Mark Rolley shall disclose to the insurer for the defendant (the “Insurer”) the amount for Statutory Accident Benefits (“SABS”) for health care expenses to which he has had the right of payment from November 1, 2018 forward to the date of payment of the judgment.
Upon (a) receipt, within 30 days of the date of this ruling, by the Insurer of the disclosure referred to in paragraph 1, and (b) payment to the plaintiffs by the Insurer of the sum of $2,003,577.30[^1] plus costs of $720,000[^2], minus the amount referred to in paragraph 1, Mark Rolley shall assign to the Insurer all of his rights in respect of all payments to which he is entitled, in respect of the motor vehicle collision of January 10, 2012, for SABS for health care expenses after November 1, 2018 (“the Assignment”).
The Insurer shall pay to Mark Rolley the reasonable costs incurred by him to preserve his rights to payment of SABS for health care expenses from November 1, 2018 to the date of payment prescribed in paragraph 2.
If the parties are unable to agree on the costs referred to in paragraph 3, the parties shall make arrangements for the costs to be fixed by the trial judge.
The Assignment shall remain in effect until the earlier of either when Mark Rolley’s rights to payment of SABS for health care benefits are exhausted or the full amount of the damages paid towards future health care expenses is exhausted.
Mark Rolley shall co-operate with the Insurer in respect of the Assignment, including participating in any mediation, litigation, or arbitration proceeding commenced by Aviva, in its capacity as assignee of Mark Rolley, to recover payments for SABS health care benefits to which Mark Rolley is entitled from November 1, 2018 until the Assignment is exhausted.
[16] The judgment issued in this action addresses the entitlement of the plaintiffs to post-judgment interest. Nothing in the order set out above detracts from the plaintiffs’ entitlement in that regard. Post-judgment interest is over and above the monetary amounts addressed in the assignment order.
Costs
[240] If the parties are unable to agree on the costs associated with the defendant’s motion for an assignment order, they shall make written submissions 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, R.R.O. 1990, O. Reg. 194;
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: October 28, 2019
COURT FILE NO.: 14-59774
DATE: 2019/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
MARK ROLLEY, JOCELYN ROLLEY, EMILY ROLLEY, BENJAMIN ROLLEY, JOSEPH ROLLEY, TOMMY PAUPST AND ANGEL PAUPST
Plaintiffs
– and –
DOROTHY MACDONELL and BELAIR INSURANCE COMPANY INC.
Defendants
RULING ON POST-TRIAL MOTION
Assignment of collateral benefits
Madam Justice Sylvia Corthorn
Released: October 28, 2019
[^1]: The parties agreed upon the amount of pre-judgment interest and included those amounts in the judgment issued and entered. This figure is based upon the damages awarded and pre-judgment interest as agreed by the parties.
[^2]: The parties agreed upon the all-inclusive figure of $720,000 for costs. The judgment issued and entered therefore includes a term with respect to payment of costs in that amount.