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[1] This the latest chapter in litigation that was commenced on 31 March 2003, following a motor vehicle accident that had occurred on 3 January 2003.
[2] The plaintiffs’ claims arising from that incident have now been the subject of three trials and two appeals.
[3] The defendants David Bush and MacDonald’s Propane settled with the plaintiffs during the course of the first trial. The active defendants since then have been the Corporation of the County of Lennox and Addington and the Corporation of the Town of Greater Napanee (the “Municipal Defendants”). These parties are represented by the same counsel.
[4] The first trial concluded in 2010. The action was dismissed. Costs were awarded to the Municipal Defendants in the total amount of $401,276.43 including disbursements and applicable taxes.
[5] On the first appeal, the Court of Appeal held that the plaintiffs had established a reasonable apprehension of basis on the part of the trial judge. The appeal was allowed, and the matter remitted for a new trial. The Court of Appeal ordered “that each party should be responsible for their own costs at trial”: Lloyds v. Bush, 2012 ONCA 349, at para. 70.
[6] The second trial was heard in 2014, with reasons for decision released on 6 February 2015 (reported at 2015 ONSC 761; supplementary reasons at 2015 ONSC 5340). The Municipal Defendants were held 60% responsible for the plaintiffs’ damages; David Bush and 818601 Ontario Inc., c.o.b. as MacDonald’s Propane were held 30% liable; Leslie Lloyd was found to be 10% contributorily negligent.
[7] The plaintiffs’ damages were assessed by the judge at the second trial in the total amount of $4,149,158.50, comprised as follows:
a. General damages for Leslie Lloyd – $300,000;
b. Family Law Act damages for Jason Lloyd – $130,000;
c. Future care – $408,866;
d. Future attendant care – $2,000,000;
e. Future income loss – $1,260,000; and
f. Past income loss – $50,292.50.
[8] The second appeal decision, reported at 2017 ONCA 252, upheld the assessment of damages at the second trial, but ordered a new trial on the issue of liability (and the related issues of causation and contributory negligence). Costs of the second trial were remitted for determination at the third trial.
[9] The third trial was heard in April and May 2019, with reasons for decision released on 6 February 2020 and reported at 2020 ONSC 842. Liability was apportioned as follows:
a. Municipal Defendants – 50%;
b. David Bush and MacDonald’s Propane – 33%;
c. Leslie Lloyd – 17%.
[10] I invited the parties to agree on the costs arising from the second and third trials, failing which they should make written submissions.
[11] The parties were unable agree on costs and, consequently, written submissions have been received. Those submissions have also addressed the issue of interest.