Court File and Parties
COURT FILE NO.: CV-19-80119
DATE: 2020/10/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
STEVEN CHARLES CHARLEBOIS
Plaintiff
– and –
THE ESTATE OF KRIS GEOFFREY CHARLEBOIS by its Estate Trustee, DORRIS (MCGEE) CHARLEBOIS
Defendant
Counsel:
Stanford Cummings, for Plaintiff
No one appearing for the Defendant Estate, it having been noted in default
HEARD: In Writing
Endorsement
(Pre-judgment Interest and Costs)
corthorn j.
Introduction
[1] In this action arising from historical sexual abuse, the plaintiff, Steven Charles Charlebois, was awarded damages totalling $345,000: Charlebois v. Charlebois (by his Estate Trustee), 2020 ONSC 5480. The damages awarded are broken down as follows - $275,000 for general non-pecuniary damages, $25,000 for punitive damages, and $45,000 for future care costs.
[2] As requested in the reasons for judgment, written submissions were delivered with respect to pre-judgment interest and costs:
• Mr. Charlebois requests pre-judgment interest in the amount of $20,171.25. That amount is based on (a) interest beginning to run as of October 23, 2015, the date on which Mr. Charlebois is alleged to have discovered the claim, and (b) a pre-judgment interest rate of 1.5 per cent per year; and
• Mr. Charlebois seeks costs on the substantial indemnity scale in the amount of $37,741.84. In support of costs on that scale, Mr. Charlebois relies on s. 4(6) of the Victim’s Bill of Rights, S.O. 1995, c. 6, and the factors listed in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Pre-Judgment Interest
a) The Date on Which Interest Began to Run
[3] Mr. Charlebois relies on the date on which he discovered the existence of his claim as the date on which his claim for pre-judgment interest began to run. He identifies October 24, 2015 as that date. Included in the written submissions is a copy of a clinical note from Mr. Charlebois’ treating psychologist for that date. The clinical note is provided as evidence of Mr. Charlebois’ communication with Dr. Virley on that date.
[4] Mr. Charlebois was receiving treatment from Dr. Virley as a result of a November 2013 motor vehicle accident in which he had been involved. Dr. Virley’s note indicates that during a telephone call with Mr. Charlebois on October 24, 2015, he reported that the accident had “busted something open in my head”. Dr. Virley continued to see Mr. Charlebois and, in her November 4, 2015 clinical note, refers to her inability to assess the impact of the accident on Mr. Charlebois’ function. In that note, Dr. Virley identifies that something else “obscures” her ability to make that assessment. Dr. Virley does not, however, say what that “something else” is.
[5] The copies of Dr. Virley’s notes are included as an attachment to the written submissions; they are not before the court as evidence. Identifying the date on which a claim is discovered requires that a finding of fact be made. Findings of fact are based on evidence. The date on which pre-judgment interest begins to run is dependent on the evidence available: L.R. v. S.P., 2019 ONSC 1737, at para. 98.
[6] At paras. 55-57 of his affidavit in support of the motion for default judgment, Mr. Charlebois,
• identified that he has been seeing Dr. Virley since September 2015,
• made no mention of when he first disclosed the potential abuse to Dr. Virley; and
• said that it was not until March 3, 2020, when he met with expert witness and psychologist, Dr. Reesor, for the purpose of this action, that he first disclosed to anyone the historical sexual abuse which he suffered as a child.
[7] Absent better evidence as to the discussion between Mr. Charlebois and Dr. Virley in late October 2015 and in the months and years that followed, I am not prepared to draw an inference to find that the discoverability date, for the purpose of pre-judgment interest, was October 24, 2015.
[8] The statement of claim was issued on May 8, 2019. I find that pre-judgment interest began to run on that date: L.R. v. S.P., at para. 105.
b) The Applicable Interest Rate
[9] Mr. Charlebois relies on the variation in interest rates from October 2015 to September 2020 in support of his request for the court to exercise its discretion under s. 130(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and allow pre-judgment interest at a rate other than the prescribed rate. Specifically, Mr. Charlebois asks the court to apply a pre-judgment interest rate of 1.5 per cent per year.
[10] Under r. 53.10 of the Rules of Civil Procedure, the pre-judgment interest rate applicable to non-pecuniary damages awarded in a personal injury action is 5 per cent per year.
[11] Pre-judgment interest is intended to be compensatory. The rate set by the court should reflect the changes in interest rates over time: Cobb v. Long Estate, 2017 ONCA 717, 416 D.L.R. (4th) 222 (Ont. C.A.), at para. 86. The damages awarded to Mr. Charlebois are intended to compensate him for damages arising from events that occurred decades ago. I take judicial notice of the fact that in the years that have passed since Mr. Charlebois suffered the abuse upon which his claim is based, interest rates have varied significantly. The prescribed pre-judgment interest rate has, at times in those years, been in excess of 5 per cent per year.
[12] Trial judges have wide discretion under s. 130 of the CJA to allow pre-judgment or post-judgment interest at a rate other than at the prescribed rate: Stellarbridge Management v. Magna International (2004), 2004 CanLII 9852 (ON CA), 71 O.R. (3d) 263 (C.A.), at para. 85, leave to appeal refused, [2004] S.C.C.A. No. 371.
[13] I find it reasonable to apply the prescribed rate of 5 per cent per year to the general non-pecuniary damages. There is no prejudgment interest applied to either punitive damages or to the cost of future care: Courts of Justice Act, ss. 128(4)(a) and 128(4)(d).
[14] Mr. Charlebois is therefore entitled to pre-judgment interest in the amount of $18,496.58 ($275,000 x 0.05 x 491/365). I turn to the issue of costs.
Costs
[15] In the reasons for judgment, Mr. Charlebois was awarded his costs of the action. A request was made for submissions with respect to the scale on which costs are payable and the quantum of costs. Mr. Charlebois seeks costs on the substantial indemnity scale in the amount of $37,741.84.
[16] Mr. Charlebois is entitled to his costs of this action on the substantial indemnity scale, unless an award of costs on that basis would not be in the interests of justice: Victim’s Bill of Rights, 1995 s. 4(6). Based on the evidence at trial, I find it to be in the interests of justice that Mr. Charlebois be awarded his costs of the action on the substantial indemnity scale. That evidence was considered in the reasons for judgment and is not repeated here.
[17] Turning to the quantum of costs, the $37,741.84 requested is broken down as follows:
Fees $ 24,609.15
HST on fees $ 3,199.19
Disbursements & HST $ 9,933.50
[18] With respect to the factors listed in r. 57.01, I considered the following matters:
• The hourly rates charged by senior counsel, associate counsel, and the law clerk, as set out in the bill of costs (and supported by the pre-bill) are reasonable. The hours docketed are reasonable with the exception that (a) there is a small amount of duplication of effort because of the involvement of senior and associate counsel in the preparation of the motion materials, and (b) the work done with respect to the recovery of costs is to be treated separately from costs related to the motion per se: r. 57.01(0.a).
• The amount claimed for costs falls within the range of that which the unsuccessful party could reasonably expect to pay: r. 57.01(0.b).
• The prayer for relief in the statement of claim includes a claim for damages totalling in excess of $1,000,000. On the motion for default judgment, Mr. Charlebois chose to limit his claim for damages because the perpetrator of the abuse, Mr. Charlebois’s late older brother, is deceased and it is unlikely that the defendant estate has significant assets. Mr. Charlebois took a practical approach to the damages ultimately claimed. He recovered the full amount of the damages claimed on the return of the motion: r. 57.01(1)(a).
• Mr. Charlebois acknowledges that, from a legal perspective, the pursuit of this action was not overly complex. He points, however, to the increased work required in matters of this kind because of the challenges encountered in ensuring that fulsome evidence is presented. Given the difficulty plaintiffs in cases such as this experience, and the care required in the presentation of evidence of a highly sensitive nature, additional care is required in the preparation and presentation of the evidence: r. 57.01(1)(c).
• This litigation is of great importance to Mr. Charlebois. It allowed him to seek redress for events which occurred decades ago. With a portion of the damages awarded, he intends to continue the treatment that he requires in an effort to progress in his recovery from the harm done by his older brother. As noted in the reasons for judgment, Mr. Charlebois hopes that with continued treatment, he will be able to improve his relationships with his spouse, children, and grand-children: r. 57.01(1)(d).
• The Estate chose not to defend the action and did not engage in any settlement discussions. Mr. Charlebois was left with no choice but to proceed with the motion for default judgment: r. 57.01(1)(e).
[19] I reviewed the detailed list of disbursements included in the pre-bill and am satisfied that the disbursements incurred are reasonable.
[20] For the reasons set out above, I fix costs of the action on the substantial indemnity scale in the amount of $34,795 inclusive of fees, disbursements, and HST. That figure is broken down as follows:
Fees $ 22,000.00
HST on fees $ 2,860.00
Disbursements & HST $ 9,933.50
Total $ 34,793.50
Rounded figure $ 34,795.00
[21] In addition, Mr. Charlebois is entitled to costs in the amount of $750 with respect to the issue of costs. That figure is inclusive of fees, disbursements, and applicable HST.
Summary
[22] For the reasons set out above, I order that the Charlebois Estate pay to Mr. Charlebois pre-judgment interest in the amount of $18,496.58 and costs, on the substantial indemnity scale, with respect to the action in the amount of $34,795.00 and to the post-motion submissions in the amount of $750.00.
Madam Justice Sylvia Corthorn
Released: October 7, 2020
COURT FILE NO.: CV-19-80119
DATE: 2020/10/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
STEVEN CHARLES CHARLEBOIS
Plaintiff
– and –
THE ESTATE OF KRIS GEOFFREY CHARLEBOIS by its Estate Trustee, DORRIS (MCGEE) CHARLEBOIS
Defendant
ENDORSEMENT (Pre-judgment Interest and Costs)
Madam Justice Sylvia Corthorn
Released: October 7, 2020