Dorion v. Ecodevelopments Windsor Inc., 2021 ONSC 820

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-00023126-0000 DATE: 20210202

RE: Rick Dorion, Plaintiff AND: Ecodevelopments Windsor Inc., Defendant

BEFORE: Howard J.

COUNSEL: James A. Renaud, for the Plaintiff No one appearing for the Defendant

HEARD: October 15, 2020

ENDORSEMENT

Overview

1The plaintiff, Rick Dorion, moves for default judgment against the defendant, Ecodevelopments Windsor Inc. (“Ecodevelopments”), pursuant to rule 19.05 of the Rules of Civil Procedure,¹ for damages arising out of a slip and fall accident that occurred on December 23, 2013.

Factual Background

2Mr. Dorion was born on January 30, 1962, and was 51 years of age at the time of the accident.

3Mr. Dorion was employed as a cable-splicer for Expertech Network Installation Inc. (“Expertech”), which is a division of Bell Canada. As a cable-splicer, Mr. Dorion was required to attend at an array of outdoor work sites, walking over a variety of terrains, climbing telephone poles or using the aerial bucket attached to his truck. The evidence of Mr. Dorion is that he has had years of safety training for his job, but it has heavy physical demands.

4Ecodevelopments is the owner and landlord of premises located at 6000 Rhodes Drive, Windsor, Ontario (the “subject property”). Pursuant to a commercial lease between Expertech, as tenant, and Ecodevelopments, as landlord, Expertech operates a business office out of leased premises at the subject property.

5Mr. Dorion had suffered a previous workplace accident, in which he injured his right knee, and had been placed on modified duties in April 2013. He had arthroscopic surgery on his right knee on October 7, 2013, and was then off work for recovery and physiotherapy. He returned to his regular duties on November 11, 2013, fully recovered and with no job restrictions. The evidence of Mr. Dorion is that he had absolutely no issues with his right knee, or at all, as of his return to work in November 2013.

6On Monday, December 23, 2013, Mr. Dorion arrived for work at the subject property at about 7:15 a.m. He was driving his work vehicle, a service truck with an aerial ladder/bucket. It was still dark out, and the evidence of Mr. Dorion is that the parking lot had limited elevated lighting. Mr. Dorion was dressed for work, wearing his winter work jacket and winter safety work boots.

7Mr. Dorion parked his truck in the parking lot at the subject property and opened the driver’s side door to exit his vehicle. Immediately after putting his left foot down to the ground and putting weight on it in order to exit the truck, his foot went out from under him, and he fell hard to the ground under the driver’s door, striking the ground on his left slide and sliding under the lower part of the truck. The evidence of Mr. Dorion is that he landed hard with all his weight on the pavement of the parking lot; he immediately felt pain all over his left side (particularly in his left wrist, left elbow, and left ribs) but also, most significantly, in his right knee, which thereafter started to swell.

8When he got to his feet, Mr. Dorion surveyed the area and observed a thin, dark layer of black ice. He observed that the parking lot had not been salted in any way.

9Mr. Dorion reported the injury to his employer. He remained at work for the morning, hoping to get some work done because it was the morning before Christmas Eve day and Mr. Dorion was planning to be off for a few days over the holidays. However, he left for home after lunch because of the increasing pain, which was impacting his mobility.

10Mr. Dorion was scheduled to return to work on Friday, December 27, 2013, but he had to call in sick due to the pain and restricted mobility. On December 30, 2013, he attended his family physician, who ordered x-rays and prescribed medication.

11While the other left side injuries were mostly healed by the end of January 2014, Mr. Dorion continued to experience some soreness in his left elbow, but it was the pain in both his knees that was the most debilitating, which kept him off work.

12Mr. Dorion remained off work from December 27, 2013, to June 26, 2014, as a result of his injuries and ongoing pain. Due to the nature and extent of Mr. Dorion’s injuries and restrictions, Mr. Dorion’s employer was unable to provide him with modified work duties until June 26, 2014. As a result, Mr. Dorion was off work for 26 weeks.

13Mr. Dorion’s employment is governed by a collective agreement between the Communications, Energy and Paperworkers Union of Canada and Expertech. Article 25 of the collective agreement is entitled, “Sickness Absence and Benefits.” Pursuant to the provisions of article 25, Mr. Dorion received sickness absence benefits based on 75 percent of his regular pay. The evidence of Mr. Dorion is that this benefit was negotiated as part of his collective agreement.

14At the time of the accident, Mr. Dorion’s regular rate of pay was $31.94 per hour, and he worked a minimum 40-hour work week. The evidence of Mr. Dorion is that he lost his regular pay in the gross amount of $33,217.60 over the 26-week period that he was off work, and he is claiming full reimbursement for this loss.

15When Mr. Dorion returned to work in June 2014, his employer provided him with an alternative position as a “Transmission Tester,” which was wholly different from his previous job, with essentially no outside or physically challenging work. Moreover, the new position carried the same rate of pay as his previous position. Both Mr. Dorion and Expertech anticipate that he will remain in this position permanently.

16On August 28, 2014, Mr. Dorion was seen by his orthopaedic surgeon, Dr. John Pepin, who diagnosed torn medial meniscus in each of his right and left knees, together with some severe chondromalacia (which Mr. Dorion understood to be an arthritic condition). Dr. Pepin presented Mr. Dorion with two treatment options: arthroscopic surgery or, to avoid surgery, physiotherapy and anti-inflammatory medications.

17The evidence of Mr. Dorion is that he has always had a fear of being put under anaesthesia and undergoing surgery. He therefore elected the less invasive option of physiotherapy and anti-inflammatories, hoping to put off surgery for as long as possible.

18On December 4, 2014, Mr. Dorion was again seen by Dr. Pepin but advised that he continued to want to pursue physiotherapy and avoid surgery for as long as possible.

19Mr. Dorion pursued the physiotherapy for some six months. He found that he still had pain in both knees at the end of the day, on a regular ongoing basis. He was able to continue with his employment but he discontinued other activities like ice hockey and baseball.

20Further, the evidence of Mr. Dorion was that the biggest effect on his life involved his care for and interaction with his son, P.D., who was four years of age at the time of the accident. P.D. is a person with autism spectrum disorder and, on occasion, demonstrates behavioural challenges, self-harming behaviours, and depression. The evidence of Mr. Dorion is that, as a result of his own limitations caused by the injuries to his knees, he became increasingly limited in his ability to interact with his son and contend with his behavioural episodes. Mr. Dorion has found himself unable to respond sufficiently, which he expects will increase as P.D. continues to grow physically. At present, P.D. is 11 years of age.

21As the pain in his knees was becoming more debilitating, Mr. Dorion saw Dr. Pepin again on March 2, 2017, at which time he decided to undergo arthroscopic surgery on both knees.

22The surgery was performed on June 26, 2017, and was successful. The evidence of Mr. Dorion is that the pain of the surgery was significant and the recovery was considerably more intense than what he experienced with the right knee surgery in 2013.

23Following the surgery, Mr. Dorion was off work for five weeks, from June 26, 2017, until July 31, 2017.

24Once more, Mr. Dorion received sickness absence benefits pursuant to article 25 of his collective agreement at 75 percent of his regular pay for the five-week absence. At the time of the absence, Mr. Dorion’s regular rate of pay was $33.93 per hour, and he worked a minimum 40-hour work week. The evidence of Mr. Dorion is that he lost his regular pay in the gross amount of $6,786 over the five-week period that he was off work recovering from surgery, and, again, he is claiming full reimbursement for this loss.

25The evidence of Mr. Dorion is that the surgical intervention “did change the daily pain noticeably and helped my daily life to become more tolerable.” As well, his evidence is that the surgery has “assisted to a degree in my abilities to interact with my son but the residual limitations still arise.” His non-work activities are still limited, and he has eliminated bike-riding, swimming, heavy lifting, and running, and he limits the distance of his walking. Mr. Dorion estimates that his mobility and ability to do the activities of daily living is about 50 to 60 percent of his pre-accident status.

26The statement of claim in this matter was issued on December 21, 2015.

27The statement of claim does not assert any claim by Mr. Dorion’s spouse or family members for loss of guidance, care and companionship pursuant to s. 61 of the Family Law Act.²

28As appears from the affidavit of service of Edward (Ted) Paschin sworn January 14, 2016, filed, Ecodevelopments was properly served with the statement of claim on January 13, 2016.

29It appears that Ecodevelopments failed to deliver a notice of intent to defend or statement of defence. On April 6, 2016, Ecodevelopments was noted in default.

Analysis

30Paragraph 6 of Mr. Dorion’s statement of claim alleges that the accident was caused solely by the negligence of Ecodevelopments and goes on to provide particulars of the factual allegations supporting the alleged negligence.

31The factual particulars include allegations that there was an ice storm on the weekend prior to the accident on Monday, December 23, 2013, and that Ecodevelopments “failed to keep the parking lot and surrounding area of the subject premises, including, especially, the parking lot, free of ice and snow,” and “failed to supply sufficient or any salt, sand, or like material … following the said ice storm.”

32By reason of the provisions of rule 19.02(1)(a) of the Rules of Civil Procedure, Ecodevelopments is deemed to have admitted these allegations as it relates to the liability issue. Clause 19.02(1)(a) provides that:

A defendant who has been noted in default ... is deemed to admit the truth of all allegations of fact made in the statement of claim … .

33On the basis of the deemed admissions and evidence before me, I find that the injuries of Mr. Dorion were caused by the negligence of Ecodevelopments.

General damages

34Mr. Renaud submits that Mr. Dorion’s general damages for pain and suffering should be assessed in the range of $125,000 to $150,000.

35I have considered “the inexhaustive list of common factors … that influence an award of non-pecuniary damages” that was enumerated in Stapley v. Hejslet, being:³

a. age of the plaintiff;

b. nature of the injury;

c. severity and duration of pain;

d. disability;

e. emotional suffering;

f. loss or impairment of life;

g. impairment of family, marital and social relationships;

h. impairment of physical and mental abilities;

i. loss of lifestyle; and

j. the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff).

36I have also read the authorities submitted by Mr. Renaud, and others, and have noted both the similarities and dissimilarities with the instant case.

37Mr. Renaud relies on the 2001 decision of Hermiston J. of this court in Miller v. Devenz,⁴ where general damages were assessed at $90,000. In my view, Miller v. Devenz does not assist the plaintiff in establishing that the appropriate range here is $125,000 to $150,000. The consequences of the injury in Miller were more severe. There, the plaintiff was a 52-year-old, working grandmother, who had led an active lifestyle. She was pushed to the ground by a large dog. She sustained a lateral fibula fracture of her left leg, from which, the trial judge found, “she has never recovered.”⁵ Following the attack, she was in hospital for five days and underwent surgery for internal fixation using a metal T-plate and five screws. Following her discharge from hospital, she used a wheelchair and a walker for two months, following which she graduated to a cane. At the time of trial, she walked with a distinct limp, assisted by a cane, could not kneel or squat, and could only walk a minimal distance. The trial judge found that she “is in pain to a greater or lesser degree chronically.” The trial judge found that her prognosis was poor; the medical evidence was that the knee would never improve but would degenerate further and, eventually, the plaintiff would need a total knee replacement. Following the injury, she was unable to maintain any type of employment.

38Comparison to the more severe circumstances in Miller suggests that the award here should not exceed even $90,000 in any event, let alone be assessed in the range of $125,000 to $150,000.

39In the 2005 decision in Mason v. Moore, Jenkins J. of our court also assessed the plaintiff’s general damages in the amount of $90,000.⁶ There, a 51-year-old woman, who was employed as a floor nurse in a surgical recovery ward in a London hospital, was involved in a motor vehicle accident. She was taken to hospital by ambulance from the scene of the accident and released later that day. As a result of the accident, the plaintiff suffered injuries to both knees, including a fracture of the left patella. These injuries accelerated degenerative changes in her knees. The trial judge found that, as a result of the accident, the plaintiff was unable to work full-time and would never be able to work as a floor nurse in the future. The judge found she would be able to work only part-time, as a community nurse until her retirement. The trial judge found that the degenerative changes in the plaintiff’s knees would continue to accelerate, causing increased pain and swelling, and ultimately requiring total joint replacements in one or both knees.

40Again, comparison to Mason suggests that the award here should not exceed $90,000.

41Mr. Dorion’s circumstances are also unlike those in Cartner v. Burlington (City),⁷ a 2008 case, where M.G.J. Quigley J. of our court assessed general damages in the amount of $120,000 for a woman who suffered a severely broken leg when she slipped and fell on a municipal sidewalk while walking to work. The accident left the plaintiff disabled. The trial judge’s discussion of the general damages speaks for itself in distinguishing Cartner from the instant case:

Let me first say that I find without reservation that the plaintiff, Marjory Cartner, suffered a significant and severe injury to her left femur as a result of the slip and fall accident that occurred on Guelph Line on November 8, 2002. The fracture was complex requiring repair with screws, metal plates and wires. Her evidence established that she experienced significant pain and suffering as a result of the accident, that her rehabilitation was longer than hoped for and that it was laborious. More importantly, I find that as a direct consequence of the accident, she experienced a significant acceleration of osteoarthritis in her knees that has caused her enormous pain and disability of function that has required her to undergo one knee replacement surgery already and that will soon require two further separate surgeries to replace her left knee. While she did have some symptoms of osteoarthritis in her back prior to the accident, both she and Dr. Holmes confirmed that it had had no impact on her ability to function fully and normally prior to the accident.

Moreover, the injuries Marjory Cartner sustained as a result of this accident have caused her to be physically incapable of continuing to earn her livelihood in the happy and satisfying manner she did before the accident, have curtailed in a material and emotionally debilitating way her capacity to engage in full familial relationships and to care for her husband, and have taken away her ability to enjoy the modest activities in life that were a source of so much of the pleasure that she and her husband shared together before the accident occurred.⁸

42The trial judge found that the Ms. Cartner’s “life has been significantly altered as a result of the injury she suffered.” Moreover, the trial judge found that, “having already been through the leg repair and right knee replacement surgeries, she faces the grim future of two surgeries to replace her left knee, and the pain, discomfort, disability and lengthy period of rehabilitation that will necessarily follow.”⁹ As such, a significant feature of the award there was that, as the plaintiff “still faces the future pain and disability of further surgeries,” but could not ask for a further award in the future, the judge allowed recovery “in this award for past, present and anticipated future pain, suffering and loss of enjoyment of life.”¹⁰

43For roughly similar reasons, the other cases relied upon by Mr. Renaud are also distinguishable from the present case.

44I have also considered the 2008 decision of the Divisional Court of Ontario in Litwinenko v. Beaver Lumber Co.,¹¹ where a 69-year-old woman, who was in good health and led an active lifestyle, suffered a serious trip and fall. Upon exiting a store, the plaintiff tripped on a lip on the entrance ramp to the door and fell face downward on the concrete, hit her head and shoulder, broke her glasses, tore some clothing, and her nose bled. An ambulance had to be called, and she was required to remain in hospital for four-and-a-half days. The plaintiff also injured her right leg, right knee, right arm and shoulder, and ribs, as well as her head. The right leg injury resolved itself within a couple of months, and her ribs healed after about six months. However, more than three years after the accident, the plaintiff was still suffering from pain and stiffness in her right shoulder caused by a “full thickness complete tear in the supraspinatus component of the rotator cuff.”¹² The trial judge awarded $15,000 in general damages; that award was set aside on appeal, and the Divisional Court substituted an award of $45,000.

45In the 2010 judgment in Billings v. Mississauga (City), Herold J. of this court would have assessed general damages in the amount of $85,000 in a slip and fall case where, after some 50 hours of a “vicious late winter storm” in April 2003, a man slipped and “suffered a devastating fall” on a municipal sidewalk as he was walking back from a convenience store.¹³ The plaintiff described his feet suddenly going out from under him and his recollection of observing both feet in a V-shape in front of him as he hit the uneven icy ground. He suffered a temporary loss of consciousness; when he awoke, he was attended to first by a police officer and then by emergency measures ambulance personnel. He was unable to get up and was then placed on a back board for transportation to the emergency department at the Mississauga Hospital. It was not disputed that he suffered a slight closed head injury, painful soft tissue injuries to his shoulder, a bruised elbow, and severe back and left shoulder pain.

46Some two years after the accident, between 2005 and the end of 2008, severe low back pain became the most prominent continuing complaint, as a result of what was initially described as either a fracture or a dislocation of the tail bone, subsequently discovered to be a subluxation of the coccyx. By late 2008 or early 2009, the lower back pain had become so severe that the plaintiff was simply unable to continue with his job (at a law firm), and he took an unpaid leave of absence. Ultimately, the plaintiff underwent surgery to repair the coccyx, as a result of which the pain was alleviated substantially, leaving him with residual back pain, which was said to be best described as episodic but may well continue indefinitely. Unfortunately, during the surgery to repair the subluxed coccyx, the plaintiff sustained injury to the musculature in the area of his rectum, leading to “probably permanent” rectal incontinence, which was an ongoing “source of inconvenience and annoyance as well as potential embarrassment in social situations.”¹⁴

47While the action was dismissed because the plaintiff failed to prove that the municipality was grossly negligent, Herold J. calculated general damages at $85,000. An appeal to the Ontario Court of Appeal on the liability of the municipality was dismissed.

48Taking all the relevant factors into account, I would assess Mr. Dorion’s non-pecuniary general damages in the amount of $80,000.

Damages for loss of income

49Mr. Dorion submits that he lost his regular pay in the gross amount of $33,217.60 for the 26-week period he was off work between December 27, 2013, and June 26, 2014, following the accident, and that he also lost his regular pay in the gross amount of $6,786 over the five-week period that he was off work between June 26, 2017, and July 31, 2017, recovering from surgery. Therefore, the total amount he claims for loss of income is $40,003.60.

50At the hearing of the motion for judgment, I questioned counsel for the plaintiff whether recovery of the full amount claimed was not barred by the prohibition against double recovery, given that, pursuant to the provisions of article 25 concerning sickness absence benefits, Mr. Dorion admittedly received 75 percent of his regular wages for the two periods in question. My question was prompted by the principle of recovery in a tort action, which, simply put, “is to compensate the injured party as completely as possible for the loss suffered as a result of the negligent action or inaction of the defendant. However, the plaintiff is not entitled to a double recovery for any loss arising from the injury.”¹⁵

51At the hearing of the motion, counsel for the plaintiff submitted that he was relying on the “private insurance exception” to the rule against double recovery. Following the conclusion of the hearing, but in response to my inquiry, by email correspondence dated October 16, 2020, counsel for the plaintiff provided further submissions on point and provided, inter alia, the Supreme Court of Canada’s decision in Cunningham v. Wheeler and the decision of my colleague Roger J. in Caron v. Omers Realty Corporation.¹⁶

52Respectfully, these authorities do not fully address my concerns.

53In Cunningham v. Wheeler, Cory J., writing for a majority of the court, explained the basis for the private insurance exception to the rule against double recovery, in the following terms:

For over 119 years, the courts of England and Canada have held that payments received for loss of wages pursuant to a private policy of insurance should not be deducted from the lost wages claim of a plaintiff. The first question to be considered is whether the rationale for this exemption persists. In my view there are convincing reasons both for the existence of the policy and for its continuation.

At the outset, it may be well to state once again the principle of recovery in an action for tort. Simply, it is to compensate the injured party as completely as possible for the loss suffered as a result of the negligent action or inaction of the defendant. However, the plaintiff is not entitled to a double recovery for any loss arising from the injury. How then has the insurance exception arisen? It was first formally recognized in Bradburn v. Great Western Railway (1874), [1874-80] All E.R. Rep. 195 (Eng. Exch.). In that case the plaintiff had been injured as a result of the negligence of the defendant railway company. The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of the accident. It was held that the plaintiff was entitled to full damages from the defendant as well as the payment from the insurer. That is to say, there was to be no deduction of the insurance proceeds received from his recovery from the defendant. This result was explained by stating that there would be no justice in setting off an amount to which the plaintiff had entitled himself under a contract of insurance such as any prudent man would make. The justification for the rule is explained in these words at p. 197 in the reasons of Pigott B.:

... I think that there would be no justice or principle in setting off an amount which the plaintiff has entitled himself to under a contract of insurance, such as any prudent man would make on the principle of, as the expression is, “laying by for a rainy day.” He pays the premiums upon a contract which, if he meets with an accident, entitles him to receive a sum of money. It is not because he meets with the accident, but because he made a contract with, and paid premiums to, the insurance company, for that express purpose, that he gets the money from them. It is true that there must be the element of accident in order to entitle him to the money; but it is under and by reason of his contract with the insurance company, that he gets the amount; and I think that it ought not, upon any principle of justice, to be deducted from the amount of the damages proved to have been sustained by him through the negligence of the defendants.

The decision of the court in that case was founded on the ground that the accident was not the causa causans of the receipt of the insurance benefits, but merely a causa sine qua non.

Later the basis for the exemption was shifted from the causal reason set out in Bradburn to one based on the fact that the plaintiff had paid for the insurance benefit and that benefit thus paid for should not enure to the benefit of the defendant. This was the approach adopted by Asquith L.J. for the Court of Appeal in Shearman v. Folland, [1950] 1 All E.R. 976, at p. 978:

What in a given case is, and what is not, “collateral”? Insurance affords the classic example of something which is treated in law as collateral. Where X is insured by Y against injury which comes to be wrongfully inflicted on him by Z, Z cannot set up in mitigation or extinction of his own liability X’s right to be recouped by Y or the fact that X has been recouped by Y: Bradburn v. Great Western Ry. Co. [supra] and Simpson v. Thomson [(1877), 3 App. Cas. 279, 38 L.T. 1; 29 Digest 290, 2355]. There are special reasons for this. If the wrongdoer were entitled to set-off what the plaintiff was entitled to recoup or had recouped under his policy, he would, in effect, be depriving the plaintiff of all benefit from the premiums paid by the latter and appropriating that benefit to himself.

This reasoning was adopted by the House of Lords in Parry v. Cleaver, infra.

In Parry v. Cleaver, [1969] 1 All E.R. 555, the majority of the House of Lords reversed Browning and held that a police officer’s disability pension should not be taken into account in assessing his damages for loss of income. Their reasons affirmed the importance of the Bradburn rule, and justified it in terms of fairness. Lord Reid stated at p. 558:

As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should enure to the benefit of the tortfeasor. Here again I think that the explanation that this is too remote is artificial and unreal. Why should the plaintiff be left worse off than if he had never insured?

Lord Pearce stated at pp. 575-76:

One must, I think, start with the firm basis that Bradburn v. Great Western Ry. Co. was rightly decided and that the benefits from a private insurance by the plaintiff are not to be taken in account ...

The Australian cases have accepted Bradburn’s case as correct. So, too, the Canadian cases. It has never been criticised in our courts. It accords with the view of the AMERICAN RESTATEMENT. And counsel for the respondent has not assailed it here.

One may put the justification of Bradburn’s case on various grounds. PIGOTT, B., in deciding it said:

... there would be no justice or principle in setting off an amount which the plaintiff has entitled himself to under a contract of insurance, such as any prudent man would make on the principle of, as the expression is ‘laying by for a rainy day’ ... It is true that there must be the element of accident in order to entitle him to the money; but it is under and by reason of his contract with the insurance company, that he gets the amount; and I think it ought not, upon any principle of justice, to be deducted from the amount of the damages proved to have been sustained by him through the negligence of the defendants.

In Shearman v. Folland the court in a judgment given by Asquith, L.J., in discussing what benefits were merely “collateral” said of Bradburn’s case:

If the wrongdoer were entitled to set-off what the plaintiff was entitled to recoup or had recouped under his policy, he would, in effect, be depriving the plaintiff of all benefit from the premiums paid by the latter and appropriating that benefit to himself.

In Hussain v. New Taplow Paper Mills Ltd., [1988] 1 All E.R. 541, the House of Lords once again affirmed the importance of the Bradburn rule. At pp. 544-45 Lord Bridge stated:

... where a plaintiff recovers under an insurance policy for which he has paid the premiums, the insurance moneys are not deductible from damages payable by the tortfeasor.

I think the exemption for the private policy of insurance should be maintained. It has a long history. It is understood and accepted. There has never been any confusion as to when it should be applied. More importantly it is based on fairness. All who insure themselves for disability benefits are displaying wisdom and forethought in making provision for the continuation of some income in case of disabling injury or illness. The acquisition of the policy has social benefits for those insured, their dependents and indeed their community. It represents forbearance and self-denial on the part of the purchaser of the policy to provide for contingencies. The individual may never make a claim on the policy and the premiums paid may be a total loss. Yet the policy provides security.

Recovery in tort is dependent on the plaintiff establishing injury and loss resulting from an act of misfeasance or nonfeasance on the part of the defendant, the tortfeasor. I can see no reason why a tortfeasor should benefit from the sacrifices made by a plaintiff in obtaining an insurance policy to provide for lost wages. Tort recovery is based on some wrongdoing. It makes little sense for a wrongdoer to benefit from the private act of forethought and sacrifice of the plaintiff.¹⁷ [Emphasis added throughout.]

54In short, the Supreme Court of Canada has said that the basis for the private insurance exception from the rule against double recovery is “based on the fact that the plaintiff had paid for the insurance benefit and that benefit thus paid for should not enure to the benefit of the defendant.”¹⁸

55The private insurance exception was more recently examined by the Supreme Court in Waterman v. IBM Canada Ltd., and the following review of the Supreme Court’s jurisprudence by Cromwell J., writing for the majority, is of assistance in considering the instant case:

In Ratych, the Court found that sick leave benefits should be deducted from damages otherwise payable for loss of earning by the party whose negligence was responsible for the injuries. For the majority, McLachlin J. wrote that it may well be appropriate not to deduct benefits where the employee can show a contribution equivalent to payment of an insurance premium. In other words, benefits may not be deductible when they come about because the plaintiff has prudently obtained and paid for insurance. However, that was not the case in Ratych, making it a different situation than one in which the benefits flow from the employer/employee relationship: pp. 973-74. In Cunningham, disability insurance benefits payable under the terms of collective agreements were held not to be deductible because there was evidence that the plaintiffs had paid for these disability plans through reduced wages. The Court’s earlier decision in Ratych was distinguished on this basis.

Finally, in Sylvester, non-contributory disability benefits received during the notice period were deducted from wrongful dismissal damages otherwise payable. The benefits were intended to be an indemnity for lost wages while the plaintiff was unable to work, the plaintiff had not contributed to acquire the benefit, and policy considerations favoured deduction.

The two cases in which the private insurance exception was not applied (Ratych and Sylvester) involved benefits that were intended to be an indemnity for the type of loss that resulted from the defendant’s breach and to which the plaintiff had not contributed. Retirement pension benefits, which are not an indemnity for loss of wages resulting from inability to work and to which the employee contributes directly or indirectly, have been held by this Court and others to fall within the private insurance exception: Guy; Gill; Chandler v. Ball Packaging Products Canada Ltd. (1992), 2 C.C.P.B. 99 at 101 (Ont. Gen. Div.), aff’d (1993), 2 C.C.P.B. 99 (Ont. Div. Ct.); Emery v. Royal Oak Mines Inc. (1995), 1995 7074 (ON SC), 24 O.R. (3d) 302 (Gen. Div.); Parry.¹⁹

56In my view, the sickness absence benefits that Mr. Dorion received pursuant to article 25 of his collective agreement are akin to the sick leave benefits in Ratych v. Bloomer,²⁰ where a majority of the Supreme Court of Canada held that sick leave benefits should be deducted from damages otherwise payable for loss of income.

57In Ratych, the majority held that where an injured employee can show that the payment of his or her wages during convalescence was a benefit for which some form of payment was directly or indirectly made, the analogy with a private insurance policy is a strong one, and the argument for non-deduction correspondingly cogent. But where no such contribution or quid pro quo could be discerned – and it is for the plaintiff to demonstrate its existence – the analogy with insurance will fail to convince.

58Writing for the majority in Ratych, McLachlin J., as she then was, explained as follows:

I accept that if an employee can establish that he or she has suffered a loss in exchange for obtaining wages during the time he or she could not work, the employee should be compensated for that loss. Thus, in Lavigne v. Doucet, the New Brunswick Court of Appeal quite rightly allowed damages for loss of accumulated sick benefits. I also accept that if an employee can establish that he or she directly paid for a policy in the nature of insurance against unemployment, equivalent to a private insurance, he or she may be able to recover the benefits of that policy, although I would leave resolution of this question for another case.

The difficulty in this case is that neither a loss nor a contribution equivalent to payment of an insurance policy is established. The question, thus, is essentially this — must the plaintiff demonstrate a loss or contribution in order to recover, or is the Court permitted to assume that because he was paid his earnings throughout his absence from work, he has in fact paid a quid pro quo and consequently suffered an equivalent loss?

In my view, it is inconsistent with the principles governing the recovery of damages in tort that the Court should assume that because a benefit has been conferred by a third party, the plaintiff has suffered an equivalent loss. I know of no principle which could support such an assumption. The rule remains as it has always been — a plaintiff is obliged to prove his or her loss.

The situation might be otherwise if the only inference which could be drawn from the payment of wages during the period in which the plaintiff is unable to work is that the plaintiff has given up a benefit in exchange for the wage benefit received. But this is manifestly not the case. A plaintiff may obtain the wage benefit even though he or she has only been on the job a few days and hence had contributed little or nothing to the hypothetical “pool” from which the benefits are drawn. Moreover, the provision of the benefit may have little or no relation to the employee’s contribution. It may be the result of legislation. It may stem from some consideration given by the union unrelated to the plaintiff’s contribution, such as settlement of past claims of other persons. It may be the result of increased profits due to windfall or the employer’s sheer generosity. In short, one cannot infer simply from the fact that an employee receives a wage benefit that the employee has suffered loss or that the employee has contributed the equivalent of an insurance premium in exchange for the benefit.²¹

59In the circumstances of the instant case, there is no evidence that Mr. Dorion paid any kind of insurance premium in respect of the sickness absence benefits he received under article 25 of the collective agreement. There is no evidence that he suffered some loss or made some form of contribution equivalent to payment of an insurance premium. There is no evidence that he, in essence, had paid for these disability plans through reduced wages, as in Cunningham v. Wheeler. And as McLachlin J. held in Ratych, it is for Mr. Dorion to prove such loss or contribution.

60As such, this is not a case like Caron v. Omers Realty Corporation, one of the cases relied upon by the plaintiff. There, Roger J. made an express finding that Ms. Caron had paid 15% of her long term disability premiums and that she “contributed to the cost of her LTD benefits.”²² In my view, the decision in Caron is consistent with Ratych and Cunningham. But it does not assist the plaintiff here.

61For all of these reasons, the amounts Mr. Dorion received for sickness absence benefits under article 25 of the collective agreement, which covered 75 percent of his regular pay, should be deducted from the damages claimed. As such, the loss of income that Mr. Dorion suffered is the remaining 25 percent of his regular wages, which was not covered by the benefits under article 25.

62For the 26-period Mr. Dorion was off work recovering from the accident, from December 27, 2013, to June 26, 2014, he claims the gross amount of $33,217.60, as his regular rate of pay was $31.94 per hour, and he worked a minimum 40-hour week. He received 75 percent of that amount under article 25. His loss is the remaining 25 percent: $8,304.40.

63For the five-week period Mr. Dorion was off work recovering from the knee surgery, from June 26, 2017, until July 31, 2017, he claims the gross amount of $6,786, as his regular rate of pay was then $33.93 per hour, and he worked a minimum 40-hour week. Again, he received 75 percent of that amount under article 25. His loss is the remaining 25 percent: $1,696.50.

64Therefore, the total loss of earnings that Mr. Dorion suffered is $10,000.90. I would allow damages for lost income in that amount.

Prejudgment interest

General damages

65Mr. Dorion claims prejudgment interest in accordance with the Courts of Justice Act²³ on all heads of damage. Subsection 128(2) of the Act creates an exception to the general entitlement under s. 128(1) for cases of non-pecuniary loss on personal injury, as follows:

Despite subsection (1), the rate of interest on damages for non-pecuniary loss in an action for personal injury shall be the rate determined by the rules of court made under clause 66(2)(w).

66Subrule 53.10 of the Rules of Civil Procedure provides that:

The prejudgment interest rate on damages for non-pecuniary loss in an action for personal injury is 5 per cent per year.

67There is no evidence before me as to when Mr. Dorion gave notice of his claim to Ecodevelopments. In the absence of such evidence, I would award prejudgment interest from the date that Ecodevelopments was served with Mr. Dorion’s statement of claim, which was January 13, 2016.²⁴

68I would award prejudgment interest from January 13, 2016, until October 15, 2020, on the amount of $80,000 at the rate of 5 percent per annum. The relevant time period is 1,737 days. I calculate and allow prejudgment interest of $19,035.62 on the general damages.

Damages for loss of income

69Subsection 128(3) of the Courts of Justice Act provides for prejudgment interest on special damages, as follows:

If the order includes an amount for past pecuniary loss, the interest calculated under subsection (1) shall be calculated on the total past pecuniary loss at the end of each six-month period and at the date of the order.

70Our Court of Appeal has recognized that, rather than using the formula set out in s. 128(3), it is common practice to award prejudgment interest on special damages at one-half the rate otherwise applicable.²⁵ The claim here was commenced in December 2015. The prejudgment interest rate otherwise applicable is one (1) percent.

71Mr. Renaud has submitted his calculation of prejudgment interest on the damages for lost income. While those calculations contemplate a different method of calculating the interest on the pecuniary loss, using a different prejudgment rate, they suggest that the starting point for the calculation of the full amount of pecuniary loss should be the mid-point of the time period over which the loss was incurred.

72In particular, in respect of the 26-period Mr. Dorion was off work recovering from the accident, from December 27, 2013, to June 26, 2014, Mr. Renaud suggests the full amount of the loss should be calculated from the mid-point of March 29, 2014. In respect of the five-week period Mr. Dorion was off work recovering from the knee surgery, from June 26, 2017, until July 31, 2017, Mr. Renaud suggests the interest should be calculated from the mid-point of July 16, 2014.

73I accept the submission implicit in Mr. Renaud’s calculations that using the mid-point date is a fair and reasonable method to calculate the interest.

74For the loss of income incurred over the 26-period following the accident, I would award prejudgment interest from March 29, 2014, until October 15, 2020, on the amount of $8,304.40 at the rate of 1 percent per annum. The relevant time period is 2,392 days. Therefore, I calculate and allow prejudgment interest of $544.22 on the lost income incurred over that 26-week period.

75For the loss of income incurred over the five-week period following his surgery, I would award prejudgment interest from July 16, 2014, until October 15, 2020, on the amount of $1,696.50 at the rate of 1 percent per annum. The relevant time period is 2,284 days. I calculate and allow prejudgment interest of $106.16 on the lost income incurred over that five-week period.

Summary

76In sum, I would award prejudgment interest as follows:

a. On the general damages award of $80,000:

$19,035.62

b. On the lost income of $8,304.40, incurred from December 27, 2013, to June 26, 2014:

$544.22

c. On the lost income of $1,696.50, incurred from June 26, 2017, until July 31, 2017:

$106.16

Total:

$19,686.00

Costs

77On behalf of Mr. Dorion, Mr. Renaud has submitted a bill of costs that seeks recovery of costs on a full indemnity basis of $24,842.60, comprised of $23,391.00 in fees (inclusive of HST) and $1,451.60 for disbursements (inclusive of HST).

78In my view, an hourly rate of $500 for someone of Mr. Renaud’s call, having practised at the bar for almost 34 years, is not unreasonable. That said, while Mr. Renaud is certainly entitled to bill his client(s) whatever hourly rate he believes the market will bear, that is not to say that the appropriate costs award that the opposing party should be made to pay in this case should provide for full indemnity of the hourly rate of $500 actually charged.

79As Leach J. explained in the decision of the Divisional Court in Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, although the court has a broad discretion in relation to costs, our appellate courts have repeatedly emphasized that an award of costs on a partial indemnity basis generally strikes the proper balance between the cost benefits to be enjoyed by the successful litigant and the cost burdens to be borne by the unsuccessful party, and that elevated cost awards should be reserved for “rare and most exceptional” cases where the conduct of a litigant warrants condemnation by the courts.²⁶

80In its 2018 decision in Mars Canada Inc. v. Bemco Cash & Carry Inc., our Court of Appeal again affirmed that “costs on a substantial indemnity basis should only be awarded ‘where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties’.”²⁷

81There is no evidence of any such conduct on the part of Ecodevelopments on the record before me. There is no basis to award costs on any elevated scale, let alone full indemnity.

82The bill of costs indicates that Mr. Renaud spent 41.4 hours on this matter, that the hourly rate charged to the client was $500, and it therefore claims $20,700.00 in fees on a full indemnity basis. I take no issue with the total number of hours incurred by Mr. Renaud. On a partial indemnity basis, having regard for the various factors set out in subrule 57.01(1) of the Rules of Civil Procedure, I am of the view that the amount of $15,500 represents a fair, reasonable, and proportionate indemnification for fees in the circumstances of the instant case. Allowing for HST of $2,015 on that amount, I fix fees in the total amount of $17,515, inclusive of HST.

83I have reviewed the schedule of claimed disbursements, the total amount of which is $1,451.60, being $1,311.75 plus HST of $139.85. I find the disbursements are reasonable in their amount and properly incurred and expensed, with one exception.

84The plaintiff claims reimbursement of $487.50 for “Quicklaw charges.” That one item represents over one-third of the entire amount of disbursements claimed. In the circumstances of this case, the $487.50 charge is excessive and unreasonable. Moreover, having regard for the factor under clause 57.01(1)(0.b), I do not think it could be said that an unsuccessful party would reasonably expect to pay $487.50 for Quicklaw charges in a case like this. I disallow the $487.50 amount.

85I therefore allow the amount of $1,200, inclusive of HST, for disbursements here.

86Accordingly, I fix the plaintiff’s costs, on a partial indemnity basis, in the total amount of $18,715 (inclusive of fees, disbursements, and HST).

Conclusion

87In sum, I award judgment in favour of Mr. Dorion in the following amounts:

a. General damages in the amount of $80,000;

b. Damages for loss of income in the amount of $10,000.90;

c. Prejudgment interest in the amount of $19,686; and

d. Costs, on a partial indemnity basis, in the all-inclusive amount of $18,715.

88In the result, judgment to go in accordance with the findings above and draft judgment as submitted, amended, and signed.

“Electronically signed and released by Howard J.” J. Paul R. Howard

Footnotes

1. 1Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
2. 2Family Law Act, R.S.O. 1990, c. F.3.
3. 3Stapley v. Hejslet, 2006 BCCA 34, 221 B.C.A.C. 272, 263 D.L.R. (4th) 19, at para. 46, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 100; followed in, inter alia, Cook v. Symons, 2014 BCSC 1781, at para. 193.
4. 4Miller v. Devenz, [2001] O.J. No. 4084 (S.C.J.).
5. 5Ibid., at para. 7.
6. 6Mason v. Moore, [2005] O.J. No. 3799 (S.C.J.).
7. 7Cartner v. Burlington (City), [2008] O.J. No. 2986, 54 M.P.L.R. (4th) 70 (S.C.J.), affirmed 2010 ONCA 407, 71 M.P.L.R. (4th) 12.
8. 8Ibid., at paras. 74-75 per Quigley J.
9. 9Ibid., at para. 76.
10. 10Ibid., at para. 77.
11. 11Litwinenko v. Beaver Lumber Co., 2008 26263 (ON SCDC), [2008] O.J. No. 2133, 237 O.A.C. 237 (Div. Ct.).
12. 12Ibid., at para. 22.
13. 13Billings v. Mississauga (City), 2010 ONSC 3101, 75 M.P.L.R. (4th) 303 (S.C.J.), at para. 1, affirmed on other grounds 2011 ONCA 247, 81 M.P.L.R. (4th) 175.
14. 14Ibid., at paras. 48-53 per Herold J.
15. 15Cunningham v. Wheeler; Cooper v. Miller; Shanks v. McNee, 1994 120 (SCC), [1994] 1 S.C.R. 359, 113 D.L.R. (4th) 1, at p. 396 [Cunningham v. Wheeler, cited to S.C.R.].
16. 16Caron v. Omers Realty Corporation, 2019 ONSC 1374 (S.C.J.).
17. 17Cunningham v. Wheeler, at pp. 396-401.
18. 18Ibid., at p. 398.
19. 19Waterman v. IBM Canada Ltd., 2013 SCC 70, [2013] 3 S.C.R. 985, at paras. 45-47.
20. 20Ratych v. Bloomer, 1990 97 (SCC), [1990] 1 S.C.R. 940.
21. 21Ibid., at pp. 972-973.
22. 22Caron v. Omers Realty Corporation, at paras. 112 and 115.
23. 23Courts of Justice Act, R.S.O. 1990, c. C.43.
24. 24See, for example, Persad v. Silva, 2016 ONSC 6880 (S.C.J.).
25. 25See Borland v. Muttersbach (1985), 1985 2134 (ON CA), 53 O.R. (2d) 129, 23 D.L.R. (4th) 664 (C.A.).
26. 26Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, 2018 ONSC 10 (Div. Ct.), at para. 30, citing Foulis v. Robinson (1978), 1978 1307 (ON CA), 21 O.R. (2d) 769 (C.A.), and Isaacs v. MHG International Ltd. (1984), 1984 1862 (ON CA), 45 O.R. (2d) 693 (C.A.). See also Laczko v. Alexander, 2012 ONCA 872, at para. 2 per Weiler J.A., in chambers.
27. 27Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43, citing Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 134.