BELLEVILLE COURT FILE NO.: CV-13-0160-00
DATE: 20210406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BENJAMIN HARTLEIN, a party under a disability by his Litigation Guardian, Megan Hartlein, MEGAN HARTLEIN-FERGUSON, personally, and PETER FERGUSON
Plaintiffs
– and –
LORRAINE CASSELMAN, TREVOR CHARD, NATHAN CHARD, a party under a disability by his Litigation Guardian, Kelly Forbes and KELLY FORBES, personally
Defendants
Sloan H. Mandel and Deanna S. Gilbert, for the Plaintiffs
Todd J. McCarthy, for the Defendant, Casselman
HEARD at Belleville: 2 March 2021 (by Zoom video conference)
Mew J.
REASONS FOR DECISION
[1] The trial of this personal injury claim is due to commence on 10 May 2021. I am the assigned trial judge and as matters presently stand, the case is to be heard by judge and jury.[^1]
[2] The plaintiffs have brought two motions in which they seek various relief, described below.
[3] By agreement, these motions were heard by me in my capacity as the assigned trial judge such that, for the purposes of any appeal that might be taken, the rulings made are to be regarded as if made at trial.
[4] To the extent it is required, leave to bring these motions is granted.
[5] The plaintiffs seek the following orders:
a. a direction that the order of presentation for trial shall be i. the plaintiffs make an opening address; ii. the defendants make an opening address; iii. the plaintiffs prove their damages; iv. the defendant responds to the plaintiffs' damages case; v. the plaintiffs reply to the defendant's response to damages; vi. the defendant seeks to disprove her presumptive liability arising from section 193 of the Highway Traffic Act; vii. the plaintiffs respond to the defendants' liability case; viii. the defendant replies to the plaintiffs' response to liability; ix. the defendant makes a closing address; x. the plaintiffs make a closing address
b. a declaration that the plaintiff Benjamin Hartlein cannot be held legally accountable for his conduct;
c. a declaration that the plaintiff Benjamin Hartlein may introduce evidence as to the amount of healthcare expenses that he incurred and which were paid by his accident benefits insurer, Gore Mutual Insurance Company;
d. a declaration that all of the past healthcare expenses incurred and paid by Gore Mutual were prima facie reasonably required as a consequence of injury in Hartlein's crash-related impairments, such that the onus shifts to the defendant to disprove their reasonableness;
e. granting leave to the plaintiffs to amend the statement of claim to increase the prayer for relief as follows: i. from $5 million to $20 million for the damages of the minor plaintiff, Benjamin Hartlein; ii. from $500,000 to $2 million, collectively, for the Family Law Act damages of the plaintiffs Megan Hartlein-Ferguson and Peter Ferguson.
Background
[6] The minor plaintiff, Benjamin Hartlein, was injured when the bicycle he was riding came into contact with a car driven by Lorraine Casselman. The accident occurred on 20 April 2012 on English Settlement Road, approximately 1.5 km west of County Road 40, in the Municipality of Quinte West. Benjamin Hartlein was eight years old at the time.
[7] Liability for the accident is disputed.
[8] On the day of the accident, Benjamin Hartlein, along with his stepfather, Peter Ferguson, had been attending a birthday party for Nathan Chard at a private residence occupied by Nathan's parents, Kelly Forbes and Trevor Chard. According to the pleadings, at some point during the party, Benjamin, Nathan and a third boy went out on bicycles. The accident occurred while the three boys were riding along English Settlement Road. It is alleged that Benjamin Hartlein was not wearing a helmet.
[9] Trevor Chard, Nathan Chard and Kelly Forbes are named as defendants in the action. However, in May 2020 the plaintiffs resolved their claims against these parties by way of a Pierringer Agreement. In accordance with the usual practice, the amount of the settlement which is subject to the Pierringer Agreement has not been disclosed to the court or to the non-settling party.
[10] Lorraine Casselman has counterclaimed against Megan Hartlein-Ferguson and Peter Ferguson, alleging that they failed to take reasonable care for the safety of their child, thereby causing or contributing to the accident.
[11] Benjamin Hartlein's accident benefits insurer, Gore Mutual, concluded that Benjamin Hartlein met the definition of having sustained a catastrophic impairment as a result of the accident.
[12] In May 2020, Benjamin Hartlein settled the issue of his ongoing entitlement to accident benefits for an as yet undisclosed amount. Up until then, Gore Mutual had paid a total of $1,382,603.54 by way of medical and rehabilitation expenses and attendant care expenses.
[13] The defendant does not challenge that the plaintiffs have received the medical rehabilitation and care that has been provided through statutory accident benefits. Nor is the reasonableness of the amounts paid challenged. The defendant does, however, dispute that, as a matter of causation, the accident was responsible for the injuries and losses claimed by the plaintiffs. The defendant says that the plaintiffs must, therefore, prove that, but for the accident, the plaintiffs would not have suffered the losses reflected by the services and expenses provided for at Gore Mutual’s expense.
Order of Presentation
[14] The usual order of presentation at civil jury trials is set out in Rule 52.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (as amended). This order is predicated on the plaintiff bearing the burden of proving both liability and damages. However, Rule 52.07(2) provides that where the burden of proof of all matters in issue in an action lies with the defendant, the trial judge may reverse the order of presentation. Indeed, traditionally the order of presentation for trial rests within the inherent discretion of the trial judge and “the manner in which that discretion should be exercised will depend on the circumstances of the particular case": Jerome v. Anderson, 1964 SCC 71, [1964] S.C.R. 291 at 307.
[15] Whereas in the present case, the plaintiffs bear the onus of proving damages, the defendant Casselman bears the onus of disproving liability. This liability reverse-onus arises from section 193(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which provides:
When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.
[16] Although Rule 52.07(2) refers to reversing the order of presentation where the defendant has the burden of proof of all matters in issue, Rule 52.07(1) confers a general discretion on the trial judge to direct a different order. Accordingly, as described by Justices Michelle Fuerst, Mary Anne Sanderson and Stephen Firestone in Ontario Courtroom Procedure, 5th ed. (Toronto: LexisNexis, 2020) at 834:
If the burden of proof is on the defendant (e.g., where the defendant driver strikes a pedestrian) the trial judge usually reverses the order of presentation on the issue on which the defendant bears the burden: Civil Rule 52.07(2).
[17] The plaintiffs are not seeking to reverse the entire presentation of evidence at trial but, rather, to adjust it to reflect the defendant’s onus to disprove her presumed liability. They argue that it would be unfair to require them to lead their evidence first since it is presently unclear what case they will have to meet. According to the plaintiffs, the defendant has given conflicting accounts of the accident in statements made and in out-of-court examinations that have occurred since the accident. They say that they ought to have the benefit of hearing Ms. Casselman's evidence and the opinion proffered by her own expert engineer, before providing their response.
[18] The plaintiffs also argue that ordering Ms. Casselman to lead the presentation of evidence on the issue of liability would serve the overarching interests of economy, efficiency, and justice as contemplated by Rule 1.04, suggesting that if, after hearing the defendant’s evidence, the plaintiffs are of the view that her evidence is insufficient to rebut the presumption of liability, they may choose not to call any witnesses or to call fewer witnesses, which would reduce the duration and costs of trial.
[19] The defendant Casselman emphasises that only one issue, namely, the negligence of Ms. Casselman as a motorist, is subject to a reversal of the burden of proof. The defendant is concerned that the order of presentation proposed by the plaintiffs will be confusing for the jury and argue that any prejudice arising from the plaintiffs not knowing the case they have to meet (which proposition the defendant rejects) can be ameliorated by the plaintiffs’ full right of reply to the defendant’s case on liability.
[20] The defendant concedes that if the usual order of presentation is maintained, it would be appropriate to grant the plaintiffs considerable latitude in terms of the evidence they are allowed to call in reply. This would include permitting the plaintiffs to call expert evidence in reply without an objection that by doing so they are offending the general rule against splitting their case (as to which, see generally Krause v. The Queen, 1986 SCC 39, [1986] 2 S.C.R. 466, per McIntyre J. at para 15.
[21] In my view, this concession adequately meets the plaintiffs’ concerns. I therefore decline to give the directions sought at this time, but do so without prejudice to either side making a further request to depart from the usual order of presentation if the circumstances so warrant.
Can Benjamin Hartlein be Found Legally Liable for the Accident?
[22] The short answer to this question is succinctly provided in the decision of Newcombe J. in Acadia Coal Co. Ltd. v. Macneil, 1927 SCC 100, [1927] S.C.R. 497, at 504:
Children aged seven and nine years have by the common law the benefit of something in the nature of a presumption that they have not sufficient capacity to know that they are doing wrong. The presumption … may be rebutted by evidence …
[23] The standard by which the conduct of a child is measured is not that expected of a reasonable adult. but that reasonably to be expected of a child of the same age, intelligence and experience: McHale v. Watson (1966), 115 C.L.R. 199 (H.C.A.), per Owen J. at 234; McEllistrum v. Etches, 1956 SCC 103, [1956] S.C.R. 787 at 793. It will be a question for the trier of fact in each case.
[24] The fact that neither counsel referred me to a case where a child as young as Benjamin (eight years and eight months) has been found contributorily negligent is likely indicative of the challenge which the defendant faces. But the question cannot be unequivocally answered in the negative at this juncture.
Statutory Accident Benefits Received and Available
[25] Since 1990, Ontario has had a number of different partial no-fault compensation systems for individuals sustaining loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile. Compensation is obtained through two routes. The first route is through statutory accident benefits which are available to anyone involved in a motor vehicle accident in Ontario, whether as driver, passenger, cyclist or pedestrian, regardless of who was at fault. The second route is through a right to sue the parties at fault for the accident in a civil proceeding, based on the law of negligence. The right to sue is subject to certain statutory thresholds and deductibles as well as other generally applicable principles of the law of damages. Section 258.3(1) of the Insurance Act, R.S.O. 1990, c. I.8 provides that a prerequisite to commencement of an action for damages for personal injuries sustained as a result of the use or operation of an automobile is that the injured plaintiff has applied for statutory accident benefits. There are three broad categories of statutory accident benefits, namely income replacement benefits, healthcare benefits and other pecuniary losses. Healthcare expenses include medical, rehabilitation and attendant care benefits, goods and services of a medical nature, rehabilitation expenses and services provided by an attendant or a long-term care facility.
[26] As already noted, Gore Mutual paid a total of $1,382,603.54 by way of medical, rehabilitative and attendant care goods and services for the benefit of Benjamin Hartlein.
[27] To avoid double recovery, s. 267.8 of the Insurance Act contains provisions which relieve the tortfeasors automobile insurer from having to pay for loss or damage which has already been compensated for by the no-fault insurer responsible for payment of statutory accident benefits.
[28] Benjamin Hartlein’s entitlement to statutory accident benefits is governed by the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 which sets out the benefits which an insurer is liable to pay to or on behalf of an insured person who sustains an “impairment” as a result of an “accident”. An “impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function, and an “accident” means an incident in which the use or operation of an automobile directly causes an impairment: Statutory Accident Benefits Schedule, s. 3(1).
[29] Gore Mutual, as the accident benefits insurer, would have made the determination that the plaintiffs were entitled to the goods and services and benefits which Benjamin Hartlein received. Had there been a dispute over entitlement to payment of statutory accident benefits, the dispute resolution mechanism provided for under the Insurance Act would have been engaged (prior to 1 April 2016, this would have been through the Financial Services Commission of Ontario; since that date, disputes regarding entitlement to an amount of statutory accident benefits are determined by the Licence Appeal Tribunal in accordance with the Automobile Insurance Dispute Resolution System: Insurance Act, s. 280.)
[30] By contrast, tort law has been described as sitting at the pinnacle of a complex system of compensation for injured persons, providing “more complete reparation for those who are able to prove that they were hurt through the fault of another person”: Allen M. Linden et al., Canadian Tort Law, 11th ed. (Toronto: LexisNexis, 2018) at §1.18. A plaintiff must establish that “but for” the defendant’s breach of duty, he or she would not have been injured: Linden at §4.21. The measure of damages is “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”: Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25 (H.L.), per Lord Blackburn at 39.
[31] The overlap between statutory accident benefits and tort damages is addressed by s. 267.8 of the Insurance Act which provides that a tort award will be reduced by the statutory accident benefits received by the injured party before judgment. Any statutory accident benefits received by the plaintiff after judgment are held in trust for or assigned to the defendant or tort insurer until such time as the benefits have been exhausted or the defendant has been fully reimbursed for payments it made under the judgment.
[32] The plaintiffs want to be able to adduce evidence of the healthcare expenses incurred by or on behalf of Ben Hartlein, including the cost of the services provided and the fact that they were paid by Gore Mutual. They also wish to be relieved of the need to prove either the reasonableness of each payment made or that the expenses were incurred as a result of impairments that Benjamin Hartlein sustained in the accident.
[33] The defendant Casselman does not challenge that the payments were made nor that the amounts paid were reasonable. However, she does not accept that the payments were all made as a result of the impairments that Benjamin Hartlein sustained in the accident. Rather, the defendant wants to be able to take the position that some of the expenses were not the result of impairments sustained in the accident but, rather, arose from either pre-existing conditions or non-accident related causes.
[34] The defendant Casselman also takes exception to the jury being told about the receipt or availability of statutory accident benefits from, or other references to, Gore Mutual and, hence the involvement of that insurer.
[35] As the Court of Appeal explained in Girao v. Cunningham, 2020 ONCA 260, at paras. 79-86, there was a time when a jury in a civil action would be automatically discharged if something happened at trial from which the jury might reasonably infer that the defendant was insured. The Court of Appeal recognised that there are now circumstances where the jury can be exposed to evidence about the existence of statutory accident benefits.
[36] In Farrugia v. Ahmadi, 2019 ONSC 4261, the trial judge permitted limited questions to be asked about caregiver expenses, attendant care expenses and housekeeping and home maintenance expenses that the plaintiff had received. The context for doing so was the position of the defence that the plaintiff had failed to take reasonable steps to mitigate her damages by using some of the accident benefits settlement that she had received to renovate her house instead of using the funds to lessen, reduce or otherwise mitigate damages sought by her in her tort claim in respect of the continuing injury and attendant losses that she was claiming in the tort action. In Peloso v. 778561 Ontario Inc. (2005), 2005 ONSC 21543, 28 CCLI (4th) 10 (Ont. S.C.), the defence was allowed to ask questions about the plaintiff’s lack of compliance with treatment recommendations. As in Farrugia, the purpose was to demonstrate a failure to mitigate. In Peloso, the trial judge ultimately reduced the damages awarded to the plaintiff by 30% on account of her failure to mitigate. However, in Ismail v. Fleming, 2018 ONSC 5979, the defence was not permitted to ask questions relating to collateral benefits with the purpose of suggesting that the plaintiff was not really disabled, or that the receipt of collateral benefits undermined her motivation to return to work.
[37] In Girao, Lauwers J.A. discussed a number of emerging principles from trial decisions involving the extent to which, if at all, evidence about statutory accident benefits settlements should be admitted in a trial of the related tort claim. Starting with the proposition that a trial judge has broad discretion to control the proceedings to ensure that trial fairness results (para. 130), he next notes that:
[131] Second, Ontario’s hybrid motor vehicle accident compensation system has as its primary concern the adequate compensation of injured persons. The reconciliation of benefits and tort damages aims to prevent double recovery. As noted, the practice in civil jury trials is to include an instruction to the jury to make their award of damages on a gross basis with no deduction for any collateral benefits. The reconciliation of the receipt of benefits and tort damages is not expected to be controversial in most instances. The task is left to the trial judge in order to take it out of contention before the jury. Perhaps that statutory allocation of responsibility to the judge reflects a recognition that the jury might otherwise be tempted to do some informal discounting of the damages award to take account of the statutory accident benefits the plaintiff has already received.
[132] Third, it falls to the trial judge in a tort action to decide contextually whether and to what extent evidence about the statutory accident benefits settlement is to be admitted. The principles of evidence law guide the decision. The first question is whether evidence of the details or existence of the statutory accident benefits settlement is relevant to a fact in issue in the tort action. The second question is whether the probative value of the evidence would exceed its prejudicial value. Striking the balance engages the trial judge’s discretion.
[38] The challenge presented by the present case is different. In the cases discussed in Girao, it was plaintiffs who resisted the introduction of evidence about receipt of statutory accident benefits for fear of the reasoning prejudice that such evidence could create in the minds of the jury leading to what Lauwers J.A. described as “some informal discounting of the damages award to take account of the statutory accident benefits the plaintiff has already received” (at para 131).
[39] In the present case, it is, however, the plaintiff who seeks to lead evidence regarding the past healthcare expenses that have been received. Not in the context of a settlement of the accident benefit claim but, rather, as part of the presentation of evidence to prove the healthcare expenses incurred by or on behalf of Ben Hartlein.
[40] The essence of the opposition mounted by the defendant Casselman is that the agreement by Gore Mutual to pay almost $1.4 million in statutory accident benefits is irrelevant to the tort trial, and that admitting such evidence would be prejudicial, because the jury is required to make an independent determination of causation, without regard to Gore Mutual’s acceptance that such benefits were paid because of an “impairment” directly caused by an “accident” (the terms in quotation marks having meanings expressly defined in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010).
[41] The plaintiffs respond that the effect of the position taken by the defendant Casselman will be to require them to prove that each and every expense incurred was reasonably related to the injuries caused by the defendant’s negligence. This would necessitate calling the various service providers retained and, in large measure, directed by the accident benefits insurer, to prove not only the reasonableness of the expenses incurred but, also, causation.
[42] The plaintiffs want to avoid the possibly laborious and confusing task of proving all of the losses that they claim have been caused by the accident. It would be far easier and, they argue, as well as being fair to the parties, to take the accident benefits that have been paid by Gore Mutual, and accept that they reflect the tort damages recoverable by the plaintiffs as a result of injuries caused by the accident. The separate formulations by which statutory accident benefits are recoverable for impairments directly caused by an accident, and by which damages are recoverable for injuries caused by a tortfeasor’s negligence may not be identical, but they are distinctions without a real difference. Whether or not that is correct – and I do not purport to resolve this issue in these reasons - as the Court of Appeal explained in Cadieux v. Cloutier, 2018 ONCA 903, at para. 17:
[17] These two forms of compensation – SABs and tort damages – are independent of one another. It is inevitable, however, that there will be overlap between the compensation provided to an accident victim by no-fault SABs and the award of damages to that person in a civil tort action. Section 267.8 of the Insurance Act contains provisions designed to address this overlap and to prevent double recovery. It reflects the principle that victims should be fairly compensated, but not over-compensated. Automobile insurers, who provide first-party benefits through SABs insurance, should not be required, when wearing their fault based liability insurer hats, to compensate an accident victim twice for the same losses. In preventing double recovery, the statutory regime modifies the common law “collateral source” rule – that insurance or other benefits available to the injured plaintiff do not reduce the amount for which the tortfeasor is liable …
[43] The Court of Appeal in Cadieux goes on to note that ss. 267.8(1), (4) and (6) require the deduction of statutory accident benefits received prior to trial from damages received in a tort action on a “silo basis”. The three “silos” are described in Cadieux at paragraph 22, namely:
a. Accident benefits for income loss (or its equivalents are to be deducted from the tort award for income loss (s. 267.8(1));
b. Accident benefits for healthcare expenses are to be deducted from the tort award for healthcare (s. 267.8(4)); and
c. SABs for other pecuniary loss are to deducted from the tort award for other pecuniary loss (s. 267.8(6)).
The Court of Appeal continues:
There is no reasonable interpretation of the legislation, in our view, that permits either a more generalized approach to deduction (that is, a deduction of SABs in one silo from a jury award for damages falling within another silo) or a more particularized approach to deduction (that is, the deduction of particular SABs within a silo only from damages for the identical head of damage awarded by the jury within the same silo).
[44] The Court of Appeal held, that so far as the deduction of SABs from tort awards is concerned, a silo approach was preferable to a strict matching (“apples to apples” approach: Cadieux at paragraphs. 56-59. In doing so, the Court of Appeal rejected an argument that a failure to deduct from tort awards on a strict matching, “apples to apples” basis would result in plaintiffs being under compensated and defendants unjustly enriched, and, further, that it would complicate jury trials by forcing plaintiffs to advance claims for which they have already been fully compensated by SABs.
[45] In rejecting the “apples to apples” strict matching approach, the Court of Appeal found that it unnecessarily complicated tort actions by focusing on immaterial distinctions or labels for heads of damages. That approach required the trial judge to undertake a “complicated and cumbersome process of ‘matching’ a head of damage in tort to a particular claim for damages under a statutory scheme”: Cadieux at paragraph 87. The Court of Appeal saw nothing unusual or complicated in requiring plaintiffs to present claims on a “gross” basis.
[46] The plaintiffs in this case do not quarrel with their burden of establishing their claim on a gross basis, but they want to streamline the process through the simple device of having the defendant Casselman admit that, to quote from the request to admit served by the plaintiffs on the defendant Casselman:
As a result of the impairments that he sustained in the bicycle – motor vehicle crash of April 20, 2012 that forms the subject matter of this litigation (the “crash”), the Plaintiff, Benjamin Hartlein (“Ben”), has incurred a variety of healthcare expenses which have been paid by his accident benefits insurer, Gore Mutual Insurance Company.
[47] In Cadieux, after stating the claim should be presented on a gross basis, rather than net of SABs, the Court continued, at paras. 89-90:
It is done as a matter of course in other forms of litigation where a plaintiff brings suit for both insured (subrogated) and uninsured (unsubrogated) claims. It is also commonplace that plaintiffs in personal injury actions will provide proof of underlying goods and services that have already been consumed as a result of their injuries, in order to demonstrate the severity of their injuries and their ongoing need for such expenses. This information will be readily available to counsel, and proof of the expenditures should be uncontroversial. The SABs paid will be a matter of record and can be readily established.
Any concerns as to trial efficiency can and should be dealt with through appropriate trial management and the cooperation of counsel. …
[48] As already alluded to, the plaintiffs argue that all of the past healthcare expenses incurred and paid by Gore Mutual fall into one of two silos, and should be deemed to have been prima facie reasonably required as a consequence of Benjamin Hartlein's accident-related impairments, such that the onus shifts to the defendant to disprove their reasonableness.
[49] Attractive though this suggestion is, it would require me to judicially legislate an embellishment to an already comprehensive statutory scheme in the guise of appropriate trial management. I decline to do so.
[50] This may be one of those exceptional cases where, despite a high degree of cooperation between counsel in respect of other matters concerning the pending trial, common ground on how to deal with this issue has been elusive.
[51] The SABs and tort routes to compensation are, as has been discussed, independent of each other: Cadieux, at para. 17. Burdensome though it might seem to the plaintiffs, if the defendant Casselman will not make the requested admissions, the plaintiffs will be required to prove their damages on a “gross” basis, including their special damages relating to past healthcare expenses and future pecuniary damages for healthcare that will be required in the future.
[52] If the defendant’s insistence that they do so is ultimately seen as having unnecessarily lengthened the trial or to have otherwise been unreasonable, there could, of course, be costs consequences: Rule 57.01.
[53] That said, the defendant Casselman cannot have it both ways on the issue of insurance. If she wants to challenge whether the healthcare expenses incurred for the benefit of Benjamin Hartlein were as a result of impairments that he sustained in the accident, it is inevitable that the jury will hear multiple references to insurance because it was Gore Mutual which retained, or approved of the use, of the healthcare goods and services received by Benjamin Hartlein.
[54] The potential harm that could flow from the jury hearing about insurance is manageable. As Lauwers J.A. stated in Girao at para. 137:
… where evidence of the statutory accident benefits settlement is in evidence before the jury, the jury instructions should carefully explain how the motor vehicle accident compensation system in Ontario functions, including the fact that the plaintiff was entitled to the statutory accident benefits, and the distinct roles of the trial judge and the jury in setting the tort damages and accounting for benefits received so that the jury can understand the reasons for the allocation of the roles. The jury should be instructed not to reduce the award of damages because it believes that the benefits have compensated the plaintiff adequately for the accident. The current rather sparse standard instruction is not adequate.
[55] In the present case, the jury should be instructed to make its own determination of whether, but for the accident, the various healthcare goods and services provided to the plaintiff would have been reasonably incurred. The jury might also be told that it is not bound by, and should not take account of, any implied or actual determination by Gore Mutual that the healthcare goods and services which they paid for were necessitated by the accident.
[56] Accordingly, having specific regard to the relief sought by the plaintiffs on this issue:
a. Benjamin Hartlein may introduce evidence as to the amount of healthcare expenses that he incurred.
b. The fact that such expenses were paid by Gore Mutual is not relevant to the jury’s determination of causation. Specifically, there is no rebuttable presumption that all of the past healthcare expenses incurred and paid by Gore Mutual were prima facie reasonably required as a consequence of Benjamin Hartlein's accident-related impairments.
c. Any concerns that arise as a result of references to Gore Mutual or accident benefits in the evidence heard by the jury can be addressed by appropriate jury instructions.
Amendment of the Prayer for Relief
[57] The plaintiffs wish to amend their statement of claim by increasing the damages claimed by Benjamin Hartlein from $5,000,000 to $20,000,000 and by increasing the damages sought, collectively, by the Family Law Act claimants from $500,000 to $2,000,000. The amendments are sought to reflect evaluations of damages undertaken on behalf of the plaintiffs based upon various reports served.
[58] The defendant Casselman acknowledges that the amendments should be granted, but submits that there should be terms, namely granting the defendant Casselman leave to conduct further discovery, insurer examinations and costs thrown away, and requiring disclosure of the settlement between the plaintiffs and the other defendants to the action, details of which are the subject of a Pierringer agreement, and a sealing order by the court.
[59] Rule 26.01 of the Rules of Civil Procedure provides:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[60] The defendant’s requests for disclosure of the amounts paid by the settling defendants pursuant to the terms of the Pierringer agreement would run contrary to the predominant practice of only disclosing details of the Pierringer agreement to the trial judge and the non-settling party after the trial between the plaintiffs and the non-settling defendant. The rationale for this practice is comprehensively addressed by the Supreme Court of Canada in Sable Offshore Energy Inc. v. Ameron International, 2013 SCC 37, [2013] 2 S.C.R. 623, and is based on promoting settlement by applying settlement privilege to the financial terms of the Pierringer agreement.
[61] The defendant Casselman, while acknowledging that she already had a significant uninsured exposure to the currently asserted claim of $5.5 million argues that a four-fold increase in the amount sought takes the defendant’s potential personal exposure into a completely new realm. Furthermore, given her significant uninsured exposure, she argues that knowing what the amounts paid under the Pierringer agreement are, combined with what has been paid to fund and ultimately settle the accident benefits claim, with enable her to make an informed decision as to what, if any, Rule 49 offer to settle she should make.
[62] In my view, any possible benefit that might arise from waiving the settlement privilege which the parties to the Pierringer agreement enjoy is marginal. The defendant Casselman has an insurance policy with liability limits of one million dollars. The settling defendants represent as much as a further three million dollars, exclusive of costs. Even as matters stand, therefore, the defendant Casselman has a significant uninsured exposure to the maximum amount claimed. Although that potential uninsured exposure will expand by orders of magnitude if the amendment is allowed, no serious issue of prejudice, other than the prejudice which invariably follows from increased financial exposure, has been established.
[63] I should add that there are no changes of substance to the statement of claim in terms of new causes of action or previously undisclosed material facts or allegations.
[64] None of the arguments put forward by the defendant would warrant the early disclosure of the Pierringer agreement or a denial of the relief sought.
[65] While the rule contemplates the possibility of an adjournment or an award of costs to mitigate the prejudice that might otherwise flow from the proposed amendment being granted, the defendant’s request for adjournment of the trial to permit additional discovery or reports from defence experts is essentially a Pavlovian response: no concrete reasons are offered that would justify an adjournment.
[66] I am also advised that at no juncture has the defendant Casselman hired her own lawyer to represent her uninsured interests. This, despite being urged to do so by Mr. McCarthy, the lawyer appointed by her insurer to defend her in this litigation.
[67] Ultimately, while the proposed amendment significantly increases the potential judgment which the defendant Casselman could be exposed to, her position has not otherwise changed. There has been extensive discovery and exchange of expert evidence. She has been advised when her uninsured exposure stood at $4.5 million to retain her own lawyer to protect her uninsured interest. She has so far chosen not to do so. With her exposure about to change, it is not too late for her to seek such advice if she wants to. I would add that although no evidence was put forward as to her financial situation. An uninsured exposure of such magnitude – whether $4.5 million or $21 million - would be significantly beyond the means of most people. And although the motion to increase the prayer for relief was not heard until the beginning of March, approximately two months before the scheduled commencement of the trial, it is a step that has been telegraphed for many months. I do not believe the relief that is now being requested comes as a great surprise.
[68] The amendments requested by the plaintiffs will therefore be granted.
[69] Because these motions were brought before me in my capacity as the appointed trial judge with the intention, among other things, to assist the efficiency of the trial, the costs of these motions will be reserved for consideration as part of the costs arising from the trial itself.
Mew J.
Released: 6 April 2021
BELLEVILLE COURT FILE NO.: CV-13-0160-00
DATE: 20210406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BENJAMIN HARTLEIN, a party under a disability by his Litigation Guardian, Megan Hartlein, MEGAN HARTLEIN-FERGUSON, personally, and PETER FERGUSON
Plaintiffs
– and –
LORRAINE CASSELMAN, TREVOR CHARD, NATHAN CHARD, a party under a disability by his Litigation Guardian, Kelly Forbes and KELLY FORBES, personally
Defendants
REASONS FOR decision
Mew J.
Released: 6 April 2021
[^1]: Since these motions were heard, the Chief Justice of the Ontario Superior has issued a Notice to the Profession and Public Regarding Court Proceedings – March 17, 2021 extending a previously announced suspension of jury selection and jury trials from 3 May 2021 until 7 June 2021 in the East Region, subject to further direction from the Regional Senior Justice.