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Knowledge of the Limitation Period
People either have knowledge; do not have it and should not be expected to; or do not have it, but ought to. No, this is not a philosophical discussion; it is a discussion relating to the proper commencement of a limitation period. Two relatively recent decisions of the Ontario Court of Appeal answer some questions regarding commencement of limitation periods and knowledge: Lauesen v. Silverman, 2016 ONCA 327 and Clarke v. Faust, 2016 ONCA 223.
ONTARIO 2016 AUTOMOBILE INSURANCE REFORMS Summary and Guideline for Best Practices
This document is intended to assist brokers in the development and implementation of a plan for communicating with their clients about the 2016 Ontario Auto Reforms. Further, it is designed to provide guidance on receiving and documenting client instructions relating to auto coverage in light of these reforms. Your clients are entitled to your advice on their options under the new standard auto policy. The presence of a clear and consistent approach toward communication and documentation will enable a broker to demonstrate, if asked, that meaningful steps were taken to service their clients in a conscientious and diligent manner.
Understanding Non-Earner Benefits By: Eric K. Grossman and Margherita P. Barbagallo1
Non-Earner Benefits (“NEBs”) have been available to injured claimants through the Statutory Accident Benefits Schedule2 since the overhaul of Ontario’s no-fault automobile insurance system in 1990. NEBs serve as a means to compensate individuals for their loss of enjoyment of daily life by providing monetary support for their inability to engage in activities ordinarily performed prior to a motor vehicle accident.3 In theory, the provision of this benefit was one of the trade offs for the reduction of the right to sue in tort caused by the introduction of a threshold for pain and suffering damages and to provide some form of weekly compensation to those not attached to the workforce akin to the income replacement benefit.
Mandel v Fakhim, 2016 ONSC 7390 (CanLII)
[1] The plaintiff sued the defendants for more than $1million in damages that he claimed to have suffered as a result of a very minor fender bender. The bulk of the trial involved the plaintiff’s efforts to prove that he suffered injuries and chronic pain that his injuries and pain were caused by the car accident. After 13 days of testimony, the jury returned a verdict for the defendant of $3,000 in general damages and zero for special damages (consisting of: past and future loss of income, past and future care, and housekeeping expenses). Having regard to the statutory deductible under s. 267.5 (7) of the Insurance Act, RSO 1990, c.I.8, the plaintiff received no recovery so the action will be dismissed.
[2] The plaintiff’s recovery for the purpose of assessing costs is the final number after application of the statutory deductible under s. 267.5 (7). Mandel v Fakhim, 2016 ONSC 6538 (CanLII) at para. 32. Therefore costs are assessed on the basis of zero recovery rather than $3,000 recovery.[1]
[3] As the defendant succeeded and the plaintiff obtained no award at all, the presumptive cost consequences of Rule 49.10 do not apply to this action. However, Rule 49.13 provides that the court has a residual discretion to consider offers to settle in making its costs determination. Costs can be awarded, for example, on a substantial indemnity basis to a defendant who successfully defends an action after having made a positive offer to settle. The normal costs on a partial indemnity basis apply up to the date of the offer and substantial indemnity costs may be ordered thereafter under Rule 49.13 and the general wording of Rule 57.01. Lakew v. Munro, 2014 ONSC 7316 (CanLII) at para. 55 and S & A Strasser Ltd. v. Richmond Hill (Town), 1990 CanLII 6856 (ON CA).
[4] The defendants offered to settle with the plaintiff on August 31, 2016 on the basis that they would pay the plaintiff $60,000 plus his costs. Having beat their offer and obtained a complete dismissal of the claim, the defendants ask for their costs on a partial indemnity basis to the date of the offer and a substantial indemnity basis thereafter in the aggregate amount of almost $355,000.
[17] I am not assessing the lawyers’ accounts on a docket-by-docket basis. Overall the task is to assess reasonableness. Recognizing another 10% deduction for potential duplication, inefficiencies, and minor off-tariff disbursements, is appropriate. In my view it is fair and reasonable in light of all of the factors noted above for the plaintiff to pay the sum of $280,000 to the defendants jointly and severally for costs, including fees, disbursements and taxes.
Moyer v Vanderwere, 2016 ONSC 7346 (CanLII)
[1] The plaintiff, Kenneth Moyer, brought this action against the defendants, Agincourt Landscaping and C.M. Vanderwerf (incorrectly named as C.M. Vanderwere), for damages arising from a motor vehicle accident. After an 11-day trial, the jury awarded the plaintiff $2,500 in general damages and $500 for past loss of income, but no future special damages. Both parties seek their costs of the action.
[26] Given that the plaintiff did recover an award from the jury and was successful in the trial he is, I suppose, presumptively entitled to costs. The defendants were successful in the outcome of the threshold motion, so they are presumptively entitled to costs. The quantum recovered by the plaintiff is so modest it would be grossly disproportionate to make an award which approaches indemnity for the costs the plaintiff has outlined of $71,397.27. As to the costs outlined by the defendant, those associated to the motion are not readily discernable.
[27] Having regard to all of the circumstances and the discretionary factors that I have weighed, the plaintiff shall recover costs from the defendant of the trial, fixed at $9,000, together with HST. The defendant shall have the costs of the threshold motion payable by the plaintiff fixed at $2,500 together with HST.
Babcock v Destefano, 2016 ONSC 7380 (CanLII)
[6] Mr. Babcock duly attended the physical examination by Dr. Watson on 8 September 2016 in Toronto.
[8] On 13 September 2016, a law clerk with the solicitors for Wawanesa received a telephone call from Dr. Watson’s assistant, who advised that Dr. Watson would not be providing a report due to not being able to meet the timeline and “unforeseen” circumstances.
[9] Despite immediate efforts to due so, Wawanesa’s lawyer was not able to speak to Dr. Watson until 16 September 2016. In that conversation, Dr. Watson advised that he was overwhelmed with work, that a number of issues had arisen which meant that he could not work at full capacity, that he had too much on his plate, that it was a very complex file and that he could not understand why the short deadline was imposed.
[10] Wawanesa’s lawyer asked Dr. Watson to propose a later date for delivery of the report. Dr. Watson responded that he was so overwhelmed that he could not even predict when he might be able to complete a report and that Wawanesa should have the plaintiff seen by another neurologist. Wawanesa’s lawyer requested that Dr. Watson send a letter to that effect. Dr. Watson duly did so. His letter of 16 September 2016 states:
I regret that due to the complexity of this matter, the extensive amount of medical documentation and the very short turnaround time required, I am unable to provide a report on Mr. Reggie Babcock.
[11] Further attempts to have Dr. Watson reconsider were unsuccessful. Accordingly, Wawanesa’s solicitor sought an appointment with another neurologist, Dr. Gordon Sawa. The first available date that Dr. Sawa was able to offer for a medical assessment is 11 January 2017. Dr. Sawa has committed to delivering a report by 31 January 2017 if the assessment on 11 January 2017 goes ahead.
[12] The motion before me, brought by Wawanesa, seeks an order requiring the plaintiff to attend a physical examination by Dr. Gordon Sawa in Mississauga on 11 January 2017 at 10:00 a.m., with transportation to be provided by Wawanesa (Mr. Babcock resides in Belleville).
[28] I have concluded that the plaintiff should be required to attend the examination by Dr. Sawa. Dr. Sawa’s report must be delivered on or before 31 January 2017. The sooner the better. If, for whatever reason, Dr. Sawa’s report is not delivered by 31 January 2017 then, the subject to the discretion of the trial judge, Dr. Sawa’s evidence will not be permitted to be introduced at trial (I realize that Ray J. made a similar order with respect to the evidence of Dr. Watson, but what transpired after Ray J. made his order is unlikely to be repeated).
Car insurance rates rising in Toronto – and vary wildly, depending on where you live
A recent Kanetix.ca study shows the average rate in Canada’s largest city for a single 35-year-old with a clean driving record in a 2013 Honda Civic is up $88 a year from last year to $1,886. And rates vary by as much as $955 a year, depending where you live.
New law allows defamation claim
In one of the first decisions to deal with the anti-SLAPP (strategic litigation against public participation) provisions in s. 137.1 of the Courts of Justice Act (CJA), a deputy judge has refused to dismiss the defamation claim of a politician in respect of statements posted online by an individual affiliated with a political advocacy group.