Court File and Parties

COURT FILE NO.: CV-14-511924

DATE: 20221018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CAROL ANN TARRINGTON, Plaintiff

AND:

HAVCARE INVESTMENTS INC. and XYZ PROPERTY MANAGEMENT COMPANY INC., Defendants

BEFORE: Madam Justice A.P. Ramsay

COUNSEL: Kal Stoykov and Tyson Carter, for the Plaintiff

Carolyn Krebs, Self-Represented

HEARD: May 2, 2022

ENDORSEMENT ON COSTS AND PREJUDGMENT INTEREST

A. Overview

[1] The plaintiff was a tenant at a residential apartment complex at 500 Dawes Road, owned by the defendant Havcare Investments Limited (“the defendant”). On September 27, 2012, the plaintiff slipped and fell at the back of the building sustaining serious orthopedic injuries. She sued the defendant for damages arising from a breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 and the Negligence Act, R.S.O. 1990, c. N.1.

[2] The defendant was represented by its principal, a non-lawyer, Carolyn Krebs (“Ms. Krebs”), who is also known as Carolyn Goodman and Marian Linton by virtue of the order of Dow J. dated April 15, 2015. Ms. Krebs is a sophisticated litigant. She made it known to the court that she has represented the defendant in other administrative matters and proceedings.

[3] After a ten-day judge-alone trial concluded in October 2020, I granted judgment to the plaintiff in Reasons for Decision dated April 6, 2021, for $236,626.36, plus prejudgment interest. The plaintiff now seeks her costs plus prejudgment interest.

B. The Claim for Costs

[4] The damages awarded to the plaintiff were as follows:

General damages $150,000.00

Past Housekeeping $ 20,000.00

Future Housekeeping and handyman capacity $ 25,000.00

Future Care Costs $ 15,000.00

OHIP Subrogated Claim $ 26,626.36

[5] The plaintiff had served a r. 49 offer to settle six days before the commencement of trial. The offer was served on the defendant by courier on a Friday and the following Monday was a statutory holiday. As a result of a combination of the deemed service provision in r. 16.06.2 and the computation of time under r. 3.01 (1)(b) of the Rules, the offer to settle was served only six days before the trial commenced, instead of the prescribed seven days prescribed under r. 49.03 prior to trial to attract the costs consequences under r. 49.10 of the Rules. The defendant did not serve an offer to settle at any point during the litigation or make any attempt to compromise. The plaintiff is seeking costs on a substantial indemnity basis in the amount of $224,581.56, or a blended amount for both partial indemnity and substantial indemnity costs totaling $200,818.47, or, in the alternative, costs on a partial indemnity basis totaling $177,715.46, plus HST on any costs awarded.

[6] Ms. Krebs argues that if costs were awarded, the plaintiff should only be entitled to fifty percent of the partial indemnity costs sought or, alternatively, $100,000.00.

[7] The plaintiff seeks prejudgment interest in the amount of $63,750 on the award of general damages and prejudgment interest of $4,930.44 on the Ministry of Long-Term Health (OHIP) subrogated claim, calculated in accordance with ss. 128(1) and (2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) and Rule 53.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The plaintiff did not calculate an amount for pre-judgment interest on the award of past housekeeping, even though this too would be included by virtue of paragraph 152 of my Reason for Decision which indicates: “The plaintiff is entitled to prejudgment interest pursuant to the Courts of Justice Act”. In the result, the judgment ought to include interest on the past housekeeping (special damages) in accordance with s. 128(3) of the CJA, which provides for calculating the interest on past pecuniary loss at the end of every six-month period and at the date of the order.

[8] The submissions on costs were adjourned several times for various reasons, including, rightly accommodating Ms. Krebs’ need for an in-person hearing (due to technical challenges), affording Ms. Krebs an opportunity to retain counsel and to deliver responding materials, and ultimately, an adjournment in January 2022, due to the suspension of in-person hearings. At the second hearing (the first was in person in September 2021), the plaintiff was directed to reserve materials which Ms. Krebs indicated that she had not received. My direction extended to also directing the plaintiff to provide any dockets generated by the plaintiff’s solicitor as well as affidavits of service(s) with respect to the plaintiff’s r. 49 offer to settle, and any authority being relied upon as these items had not been provided to the defendant.

[9] Despite a number of adjournments, and deadlines being set, the defendant has not provided any written submissions.

[10] The plaintiff has filed Costs Submissions, Supplementary Costs Submissions, and a Bill of Costs as well as dockets. I also heard oral submissions from counsel for the plaintiff and Ms. Krebs.

C. Principles and Rules to be Applied in Fixing Costs

[11] As a general principle, costs are in the discretion of the court: CJA, s. 131. The general rule is also that the unsuccessful party is liable to pay costs: Foulis v. Robinson (1978), 1978 1307 (ON CA), 21 O.R. (2d) 769. The plaintiff, as the successful party, is presumptively entitled to her costs, and I see no basis to depart from the general rule.

[12] The quantum of costs should be proportional to the amount awarded: Burhoe v. Mohammed, 2012 ONCA 499, and should be fair and reasonable: Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para 4. In awarding costs, the court should consider the factors set out in r. 57.

The Scale of Costs

[13] The plaintiff is seeking substantial indemnity costs based on an offer to settle, and the costs consequences which flow from r. 49.10, and on the basis that the defendant has engaged in misconduct, including failing to provide particulars of the existence of any insurance which may be available to satisfy a judgment, which the plaintiff argues amounts to abusive conduct.

[14] Rule 49.03 of the Rules of Civil Procedure provides that an offer to settle may be made at any time, but the costs consequences in r. 49.10 do not apply if it is made less than seven days before the hearing commences.

[15] Rule 49.10, which deals with the costs consequences of failure of a defendant to accept a plaintiff’s offer to settle reads:

49.10 (1) Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

[16] The plaintiff’s offer to settle was served by courier on the defendant on Friday, September 4, 2020, however, with an intervening statutory holiday, service was effective on September 8, 2020. As the trial started on September 15, 2020, when evidence was called, the offer to settle was not served within the seven days prescribed by r. 49.03. As for the terms of the offer, the plaintiff offered to settle her claims for $125,000 inclusive of interest, plus costs and disbursements to be agreed upon or assessed, and payment of the OHIP subrogated claim.

[17] On its face, it appears that the plaintiff obtained a judgment as favourable or more favourable than the terms of her offer to settle. However, the plaintiff concedes that technically, her offer to settle did not comply with the prescribed seven-day time requirement but argues that the court retains discretion to award a higher scale of costs. The plaintiff submits that the defendant’s defence involved the maintenance of a continued false pretense that the defendant did not have a valid policy of insurance on the date of loss. The defendant’s failure to disclose the existence of insurance is at the root of the plaintiff’s contention that the defendant’s conduct was abusive. The plaintiff submits that the court may award substantial indemnity costs where a party’s conduct has been abusive, or the party has caused an expenditure of costs which was unnecessary from the outset.

[18] The defendant argues that the offer to settle was not compliant with the Rules, and further that the costs submissions do not set out any amount for costs giving her the whole picture.

[19] Ms. Krebs also argued that she did not know what the whole deal was. The Ontario Court of Appeal has held that when comparing an offer to settle under r. 49.10 to determine whether a party’s judgment was as favourable as or more favourable than the party’s offer to settle, all the terms of the offer to settle must be compared, including costs, with all the terms of the judgment: Rooney (Litigation Guardian of) v. Graham, 2001 24064 (ON CA), [2001] 53 O.R. (3d) 685 at para. 57 (C.A.). Therefore, technically, Ms. Krebs is correct that the defendant did not have the whole picture. However, in my view, the plaintiff’s offer to settle, though not valid, represents a real attempt to compromise. In contrast, the defendant made no offer to settle, and Ms. Krebs took the position, which she revealed at the trial, that she did not believe the plaintiff, and I infer from that, that was the reason a trial was inevitable. That inference is further strengthened by the lack of any offers to settle whatsoever from the defendant, attempt to compromise, or effort to co-operate with counsel for the plaintiff during the litigation.

[20] I disagree with the plaintiff that there is flexibility to award substantial indemnity costs by virtue of the court’s discretion, without more, where there is non-compliance with the time for serving an offer. Rule 49.03 is clear that the costs consequences in r. 49.10 do not apply where an offer is made less than seven days before the hearing commences. Rule 49.10 provides that where the plaintiff serves an offer to settle which remains open for acceptance until the commencement of trial and obtains a judgment that is as favourable as or more favourable than the offer to settle, i.e., beats it, she would be entitled to partial indemnity costs to the date of the offer, and substantial indemnity costs from that date, subject to the discretion of the court to order otherwise. I decline to follow the decision of Kagal v. Tessler, 2003 7272 (Ont. S.C.), as urged by the plaintiff. In that case, the plaintiff made several offers to settle, none of which were served within the prescribed seven days. O’Driscoll J. awarded costs to the plaintiff on a substantial indemnity basis under r. 49.13.

[21] Rule 49.13 provides that:

Despite rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.

[22] Rule 49.13 is silent with respect to the scale of costs. However, the Ontario Court of Appeal has held that r. 49.13 calls for a holistic approach to determining costs regardless of technical deficiencies: Lawson v. Viersen, 2012 ONCA 25, 108 O.R. (3d) 771, at para. 46; Elbakhiet v. Palmer, 2012 ONCA 544, 121 O.R. (3d) 616, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 427, at para. 35; Wilson v. Cranley, 2014 ONCA 844, 325 O.A.C. 396, at para. 26; and König v. Hobza, 2015 ONCA 885, at paras. 35 and 36.

[23] I hasten to add that the holistic approach does not mean that an offer to settle that does not comply with the requirements of r. 49 is a valid offer to settle. For instance, in Elbakhiet, the appellants made an offer to settle that complied with the time limit requirements and was very close to the award granted at trial. The Court of Appeal held that, while the offer and the judgment were very close in amount, the appellants had failed to show that the offer exceeded the judgment. Determining whether an offer to settle that was $986.93 shy of the judgment award was “favourable”, at para. 31, Rosenberg J.A., speaking for the Court, indicated that there was no “near miss” policy; however, the Court noted that a trial judge may otherwise take into account any offers to settle in accordance with r. 49.13 in exercising its discretion with respect to costs.

[24] The costs consequences that flow from r. 49.10 are mandatory: König at paras. 29 and 32. In the result, Ontario’s highest court has stressed the need for parties to have certainty when making r. 49 offers to settle as to whether an offer meets the requirement: Elbakhiet, at para. 20. The Court of Appeal has now made it abundantly clear that this extends to certainty of determining whether an offer meets the seven-day timing requirement: König, at para. 31. The Court indicated that the “no near miss” policy is also applicable to the timing requirement under s. 49.03 of the Rules as well as to the quantum of the judgment: König, at para. 30. Therefore, an offer to settle that did not comply with the prescribed seven days mandated by r. 49.03 of the Rules was not a valid offer to settle, and the mandatory costs consequences in r. 49.10 were not applicable. In König, Epstein J.A., speaking for the majority, noted at para. 29 that:

the requirement that, in order to attract the mandatory cost consequences of rule 49.10, an offer to settle must be served at least seven days before the commencement of the hearing, is contained within Rule 49 itself. The wording of the provision makes clear that the timing requirement is just that -- a requirement. It is mandatory. [Emphasis added].

[25] Therefore, the plaintiff’s offer to settle in this case was not a valid r. 49 offer to settle. While neither party referred to König, the plaintiff has maintained that the conduct of the defendant warrants a higher scale of costs. The plaintiff did rely on Lawson and Elbakhiet, both of which confirm principles reiterated by the by the Court in König, that is that the court has residual discretion under r. 49.13. The plaintiff urges the court to consider the plaintiff’s offer to settle pursuant to r. 49.13, despite the plaintiff’s non-compliance with the timeframe under the Rules. Ms. Krebs argues that the court should not consider the offer to settle in any circumstances as the lawyers should have known what they were doing.

[26] König deals squarely with a situation where the trial judge exercised his residual discretion, inferentially, under r. 49.13 and awarded the appellants costs on a substantial indemnity basis due to the respondent’s conduct, in the wake of a non-compliant offer to settle. In that case, the respondents served an offer four days before the trial, and the trial judge considered it as if it was a valid offer despite it not meeting the seven-day timing requirement. And, though the trial judge did not specifically refer to r. 49.13, the Court of Appeal was of the view that he did so by inference. The Court of Appeal accepted that the trial judge had residual discretion to award a higher scale of costs under r. 49.13 based on the party’s conduct.

[27] While Ms. Krebs argues that her conduct as a non-lawyer has been excellent, I would disagree. However, I am not satisfied that the defendant’s failure to provide insurance particulars is tantamount to the defendant acting in an abusive manner which would warrant costs on a substantial indemnity basis. The defendant has steadfastly denied liability and damages, but that is their right. The defendant did not make any offers to settle; that too is their right. And the defendant refused to co-operate with trial documents, as is their right, subject of course to the usual sanctions on costs normally meted out on a partial indemnity scale if the warranted by the circumstances. In this case, I am not convinced that the defendant’s conduct was abusive and worthy of chastisement.

[28] The Ontario Court of Appeal has indicated that substantial indemnity costs may be awarded where the conduct of a party has been reprehensible, scandalous, or outrageous, whether in the circumstances giving rise to the cause of action, or in the proceedings: Davies v. Clarington (Municipality), 2009 ONCA 722, 312 D.L.R. (4th) 278, at para. 31; McBride Metal Fabricating Corp. v. H. & W. Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97, at para. 39. A higher scale of costs is awarded in circumstances where there are specific acts or a series of acts indicating an abuse of process, thus warranting costs as a form of chastisement: Walker v. Ritchie, 2005 13776 (ON CA), 197 O.A.C. 81 (C.A.), at para. 105, and 2006 SCC 45, [2006] 2 S.C.R. 428.

[29] In this case, the plaintiff did not oppose the order for leave sought by Ms. Krebs to represent the defendant corporation as a non-lawyer. The plaintiff did so while being aware, or ought to have been aware, that the defendant was a residential apartment complex with over two hundred tenants, which made it improbable that the defendant would not have had insurance. Further, as I have tried to impress upon the plaintiff throughout, this is not a case about insurance coverage. The existence of insurance was not relevant to the issues to be decided by me. Insurance particulars could have been obtained by the plaintiff by a timely motion under r. 31.06(4). It is pure speculation by the court to decide that the case would have proceeded any differently had an insurer been involved. Nothing on the evidence before me convinces me that the defendant’s conduct rose to the level of being reprehensible, scandalous, or outrageous, especially as the defendant was represented by a non-lawyer. Had the plaintiff brought a motion, obtained an order, and there was some evidence before the court of the defendant’s intentional breach of its disclosure obligation, the result may have been otherwise. It would certainly have been much more obvious to the court that Ms. Krebs had adequate notice of the defendant’s disclosure obligation under the Rules.

Principle of Indemnity - rates charged and the hours spent by that lawyer

[30] Pursuant to r. 57.01(1)(0.a), the court may consider the rates charged and hours spent by the lawyers in deciding costs. The defendant does not challenge the hourly rate or the years of call of the timekeepers in the plaintiff’s Bill of Costs. While the rates charged are not set out, I do not think the amount charged are unreasonable having regard to the various lawyer’s year of call.

Reasonable Expectation of the Parties

[31] Rule 57.01(1)(0.b) provides that the court may take into consideration the reasonable expectation of the parties. Ontario’s highest court has also held that costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual cost to the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291; Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40; Zesta Engineering Ltd., at para. 4; Davies, at para. 52.

[32] While I appreciate that the defendant is self-represented, the defendant has not provided a Bill of Costs, Costs Outline, or any indication as to what the defendant reasonably expected to obtain as costs.

Amount Claimed and amount recovered – R. 57.01(1)(a)

[33] The plaintiff claimed damages of one million dollars plus prejudgment interest. She recovered damages in the amount of $236,626.36 plus prejudgment interest, which is a good result, especially as the plaintiff had no claim for income loss.

Apportionment of Liability – R. 57.01(1)(b)

[34] Liability was strenuously denied by the defendant, who took the position that the plaintiff was entirely the author of her own misfortune. The plaintiff was wholly successful on liability. There was no apportionment for contributory negligence.

Complexity of the Proceeding – R. 57.01(1)(c)

[35] This matter was of moderate complexity due to the issue of causation.

Importance of Issues – R. 57.01(1)(d)

[36] The issues in the lawsuit were important to both parties. The plaintiff sustained serious orthopedic injuries (a fractured right humerus) resulting in two surgeries.

The conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding – R. 57.01(1)(e)

[37] At the trial, Ms. Krebs indicated that the defendant had not been served with the plaintiff’s expert report or received production of the plaintiff’s trial documents. Addressing these issues unnecessarily lengthened the trial proceeding. In the end, affidavits, and other evidence established that the defendant had been served with the expert report long before the trial started, and the defendant would have had the plaintiff’s productions to conduct an examination for discovery of the plaintiff.

[38] Other conduct that lengthened the proceedings included the defendant presenting binders with voluminous documents amid the trial (no affidavit of documents was delivered prior to trial), and the defendant refusing to agree on any documents, which necessitated the calling of a number of witnesses merely to prove business records.

[39] Throughout the trial itself, the defendant exhibited not the slightest interest in co-operating with the other side, even on the most non-contentious matters. The plaintiff argues the defendant’s failure to co-operate existed throughout the course of the proceedings and was emblematic of the defendant’s failure to disclose the existence of insurance, which the plaintiff suggested would likely have resulted in timely attempts to compromise short of trial.

Denial of or refusal to admit anything that should have been admitted – R. 57.01(1)(g)

[40] The plaintiff did not serve a Notice of Intention to Produce or Request to Admit which ought to have been done. By the same token, as indicated above, the defendant refused to co-operate or make any concessions with respect to the documents tendered at trial.

Quantum

[41] The plaintiff has had seven lawyers who worked on her file at different points throughout the course of the litigation, ranging in years of call from 2020 to 2009. The defendant challenges the number of different lawyers however, Ms. Krebs indicated that she could not determine if there were duplications. Ms. Krebs is not unsophisticated despite being a non-lawyer. At the initial attendance on September 1, 2021, to address costs, I directed the plaintiff to reserve her Costs Submissions and Brief of Authorities and directed the plaintiff to provide any dockets (or a docket list) to the defendant. That was carried out and in the result Ms. Krebs had the plaintiff’s materials for at least seven months, if not more, at the time of oral submissions.

[42] The statement of claim was issued in September 2014. The matter proceeded through the usual stages of litigation. The plaintiff served an affidavit of documents. Discoveries of the parties were completed over the course of two days. The parties participated in a failed mediation and a pre-trial conference before the proceeding culminated in a ten-day judge-alone trial.

[43] The plaintiff is seeking $177,000, plus HST as partial indemnity legal fees for a total of 354.3 hours expended by all timekeepers. Ms. Krebs submits that the amount should be half that amount, or 100,000.00.

[44] While I have not calculated the reduction with any degree of exactitude, it is now a well-established principle in Ontario that the fixing of costs is not simply a mechanical exercise: Boucher, at paras. 24 and 26. The jurisprudence establishes that the overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher, at para. 38; Davies.

[45] There are seven timekeepers on the file. The years of call range from 2009 to 2020, but the rate for the various timekeepers is not included in either the Bill of Costs or the Costs Submissions. However, after reviewing the plaintiff’s Bill of Costs and Costs Outline, as well as the docket list uploaded to Caselines, I am allowing $170,000.00 for legal fees plus HST of $22,100.00, for a total of $192, 100.00. There were two lawyers at trial, though not throughout the trial. Mr. Carter’s time docket for trial and attendance amounted to $29,160.00 and Mr. Stoykov is claiming $97,920.00. I see no obvious duplication of time during the life of the file. It was reasonable for Mr. Stoykov to have a junior lawyer with him at trial given the defendant’s “take no prisoner” approach to defending the case.

[46] As noted above, the court may take any offer to settle into consideration despite the lack of strict compliance with r. 49.10: Elbakhiet; König; and r. 49.13. But for the intervening statutory holiday, or if the defendant had been served personally, the plaintiff would have met the time for serving an offer to settle. From the record, and from Ms. Krebs own admissions, the plaintiff is the only party who ever attempted to compromise. Given the failure of the defendant’s representative to co-operate with the other side and the repeated instances where counsel was obliged to address a procedural matter because of the defendant’s non-disclosure, late disclosure, or denial that she had received documents or an expert report. Additionally, this was a moderately complex case due to the issue of causation, and in the result, I have allowed Mr. Carter’s trial time, which, which I found to be reasonable. In this respect, I have taken r. 49.13 into account in exercising my discretion with respect to costs, but I would reduce the legal fees by $7,715.00 for time docketed for “printing” all manner of communications, “diarizing”, “interoffice communications”, “scanning”, and “receiving instructions”. The reduction also considers some reduction for one of the solicitors docketing six days of 15-hour days for the trial.

Disbursements

[47] The plaintiff is seeking $23,607.03 plus $3,016.26 in HST for disbursements. I have disallowed the items for mileage, parking and scanning some of the items for “attempt service” and, accordingly, I would allow $22,710.13 for disbursements plus HST of $2,952.00.

Pre-Judgment Interest

[48] In her Written Submissions, the plaintiff calculated prejudgment interest on the award of non-pecuniary general damages of $150,000.00 in the amount of $63,924.66, and $4,930.44 for prejudgment interest on OHIP’s subrogated claim. I heard oral submissions from counsel for the plaintiff only on this issue. The defendant has not responded to the plaintiff’s calculation.

[49] Counsel for the plaintiff did not provide the calculation for prejudgment interest on the past housekeeping, but it has been dealt with here. Either party may make any further submissions on my calculation of the prejudgment interest on that item within fifteen days of receiving this endorsement. The defendant has not challenged the plaintiff’s calculation of prejudgment interest.

[50] I accept the plaintiff’s calculation of the amount of prejudgment interest. In a slip and fall case, prejudgment interest for non-pecuniary damages is governed by s. 128 of the CJA, and r. 53.10.

[51] Section 128(1) of the CJA provides that:

128(1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon, at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.

[52] Rule 53.10 provides that the prejudgment interest rate on damages for non-pecuniary loss in an accident for personal injury is 5 percent per year. Since the fall occurred on September 27, 2012, the date of judgment being April 6, 2021, the plaintiff is entitled to prejudgment 42.5% or $63,750.00, calculated from the date of the fall to the date of judgment.

[53] As for the special damages, past housekeeping, s. 128(3) of the CJA governs the calculation of prejudgment interest as noted above. The conventional approach is to calculate the interest on this amount at half rate (i.e., half the rate of the interest calculated for non-pecuniary general damages). In the result, the plaintiff is entitled to $4,250.00 on the $20,000.00 past housekeeping.

D. Disposition:

[54] Accordingly, order to go as follows:

i. The plaintiff is entitled to legal fees in the amount of $170,000.00 plus HST of $22,100.00.

ii. The plaintiff is entitled to disbursements in the amount of $22,710.13 plus HST of $2,952.00.

iii. The plaintiff is entitled to prejudgment interest on general damages in the amount of $63,750.00.

iv. The plaintiff is entitled to interest for the past housekeeping, at half rate (21.25%), in the amount of $4,250.00.

v. The plaintiff is entitled to prejudgment interest on OHIP’s subrogated claim in the amount of $4,930.44.

vi. Post judgment interest on the damages award accumulates from the date of the judgment on April 6, 2021.

vii. Interest on costs and disbursement should commence to accumulate as of the date of release of this Endorsement on Costs and Prejudgment Interest.

[55] The plaintiff may submit a draft judgment to Ms. Diamante for signature. Counsel shall ensure that the draft order is forwarded to the defendant’s address for service by mail together with any confirmation from the Ministry of Long-Term Health on its position on prejudgment interest, such amount to be included in the draft judgment.

A.P. Ramsay J.

Date: October 18, 2022