[1] This case was a three and one-half week jury trial involving a claim for personal injury by the plaintiff, Jeffrey Grieves, arising out of a motorcycle accident on July 24, 2012.
[2] On December 12, 2017 the jury returned its verdict and awarded the plaintiff $50,000 for general damages, $61,000 for past lost income, and $90,000 for future lost earnings.
[3] After taking into account the current deductible provided in the regulations, the $50,000 general damages award would entitle the plaintiff to non-pecuniary damages of $12,615 if he met the statutory threshold.
[4] While the jury was deliberating, the defendants brought a “threshold motion” for a declaration that the plaintiff’s claim for non-pecuniary loss was barred on the basis that the plaintiff had failed to establish on the evidence that, as a result of the collision, he sustained a permanent, serious impairment of an important physical, mental or psychological function.
[5] On January 2, 2018, I released my decision on the threshold motion (Grieves v. Parsons, 2018 ONSC 26 (CanLII)), and concluded that the plaintiff did not fall within the statutory exception set out in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8, and therefore granted the defendants’ motion to dismiss the plaintiff’s claim for non-pecuniary damages. On this basis the plaintiff’s non-pecuniary damages were reduced to zero.
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[69] One factor that increased the plaintiff’s costs was that the defendants did not admit liability for the accident until one week before the trial.
[70] Another factor to be considered is the amount claimed and the amount recovered in the proceeding (rule 57.01(1)(a)). In this case the plaintiff’s final award was a fraction of the $1 – $1.2 million claim that the plaintiff proposed to the jury.
[71] I have not been provided with any information relating to any offers to settle made by the plaintiff.
[72] The total costs must be proportional to the amount awarded, but costs may exceed the award of damages in appropriate circumstances. “Proportionality should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award”: Doyle v Zochem Inc., 2017 ONSC 920 (CanLII), at para. 26.
[73] The medical issues were somewhat complex. The plaintiff’s injuries were not in dispute, but causation was the central issue in the case. In addition to his treating physicians, the plaintiff called expert evidence from an orthopaedic surgeon. The jury was presented with valuations of past and future loss of income from a forensic accountant.
[74] While other experts were called, I did not find their evidence particularly helpful, and, apparently, neither did the jury. Costs should be reduced on this basis.
[75] The trial lasted three and one-half weeks. In my view the plaintiff’s case could have been presented more efficiently. For example, the plaintiff’s own physician was taken to virtually every medical record and clinical note in relation to the plaintiff in her possession. Her testimony could have been more focused and much briefer. In addition, the plaintiff’s opening address to the jury resulted in a number of objections and required correcting instructions before the case could proceed.
[79] In applying the proportionality principle and exercising my discretion in awarding costs based upon what is fair and reasonable, the factors set out in Rule 57.01 and 49.13, and the principles from the appellate courts, I fix the costs as follows: the plaintiff’s costs are fixed at $115,000 for legal fees and $50,000 for disbursements, inclusive of HST, for a total of $165,000, payable within 45 days.