In MacLeod v Marshall, 2019 ONCA 842, the Ontario Court of Appeal (“ONCA”) dealt a blow to the long-standing notion that the prejudgment interest rate (“PJI”) for non-pecuniary general damages in personal injury cases is 5% per year.
In MacLeod, a personal injury action involving allegations of sexual abuse, the ONCA reversed the trial judge’s ruling of a 5% PJI. The ONCA substituted a 1.3% rate to reflect the low bank rate in the time period from when the action was commenced to the date of judgment.
Writing for the court, Thorburn JA explained that the reasoning for the 5% PJI is outdated, a legislative response from a time period when the bank interest rate was much higher than 5%. The reasoning, in 1987, was that non-pecuniary general damages are already adjusted for inflation. Allowing the high-interest rate at the time to be the same as the PJI was effectively double compensation for inflation. But since then, the interest rate has dropped considerably. The market rate has not been 5% since 2001. Today, it is 1.75%.
This was the impetus for the 2015 legislative change to PJI in motor vehicle accidents, where s 258.3(8.1) of the Insurance Act changed the 5% PJI to be in line with the interest rate, subject to the court’s discretion to vary.
The ONCA is of the view that the PJI rate in all other personal injury cases should follow suit. Thorburn JA said that the PJI rate in a personal injury case should be based on the market rates for the relevant time period. The trial judge ought to have considered the factors listed in s. 130 of the Courts of Justice Act, which includes the fluctuation in market rates from the time the claim was commenced to the time judgment was rendered. He did not. He simply applied the customary 5% rate with no consideration of other factors. This was a reversible error.
Defence counsel in particular should have this case in their back pocket when negotiating settlement in their next personal injury case, particularly in cases with high non-pecuniary general damages exposure. The monetary difference between a 5% and 1.3% PJI can be significant.
Posted in Personal Injury | Tagged Ontario Court of Appeal, Personal Injury, Prejudgment interest rate
The Ministry of the Attorney General recently announced two major reforms to Small Claims and Simplified Procedure as of January 1, 2020. Continue Reading…
Posted in Personal Injury, Simplified Procedure, Small Claims | Tagged Ministry of the Attorney General, Personal Injury, Simplified Procedure, Small Claims
With the Toronto Raptors beating the Milwaukee Bucks in the NBA Eastern Conference Finals, we were reminded of a case involving three former Bucks players including Hall-of-Famer Gary Payton. Continue Reading…
Posted in Employment Law, Tort Law | Tagged Liability, Personal Injury, Vicarious Liability
This past summer, the Ontario Court of Appeal released contradictory decisions in Smith v Safranyos 2018 ONCA 760 (“Safranyos”), and Chiocchio v Hamilton (City), 2018 ONCA 762 (“Chiocchio”). The cases address a municipality’s standard of care for keeping a road in a reasonable state of repair. They involve similar facts, similar arguments, but reach opposite conclusions. The decisions were released on the same day, but heard separately. Continue Reading…
Posted in Municipal Liability, Tort Law | Tagged Non-repair of highway, Painted stop bar
The plaintiff was involved in a relatively minor rear-end collision. She brought an action alleging to suffer from chronic pain. Continue Reading…
Posted in Automobile Accidents | Tagged Collateral Benefit Deductions, Damages, Loser Pays, No Fault Auto Insurance, Personal Injury
1.0 Overview
The duty of care owed by a municipality to persons using recreational trails is set out in section 4 of the Occupiers’ Liability Act. This section provides a lesser duty of care than section 3(1) of the Act, which requires that occupiers take steps to see that persons entering on the premises are reasonably safe while on the premises. The Court of Appeal recently had occasion to consider section 4 and reinforced the existing jurisprudence which provides that reckless disregard for the safety of persons using recreational trails is enough for a finding of liability. Although deliberate intent is also addressed in section 4, it is not a requirement for a finding of liability. Continue Reading…
Posted in Municipal Liability, Occupiers’ Liability | Tagged Bicycle accidents, Occupiers’ Liability Act, Recreational trails
The MMW Burns Supper in January once again proved to be great fun all the while raising $4,000 for the Toronto Lawyers Feed the Hungry.
Here’s a gallery of photos from our evening at the Toronto Arts and Letters Club to honour the Bard of Scotland.
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Posted in MMW News, Uncategorized | Tagged Burns supper, Robbie Burns
On Sept. 19, 2017, Ontario insurers took home two big wins from the Court of Appeal. The judgments, from two separate cases collectively dubbed Khodr & Cobb, will result in significant changes to the damages side of MVA tort cases.
Continue Reading…
Posted in Motor Vehicle, Tort Law | Tagged Accident Benefits, Car Accident, Court of Appeal, Insurance Act, Statutory deductible
MMW is class counsel in a case called Ivany v. Financière Telco, Verbeek et al. Barrie Court File No. 01-B2684. The court has approved a settlement between Dundee Securities Corporation and a portion of the class. The court previously certified the case as a class action against Brian Verbeek, Dundee Securities Corporation, and Canadian Western Trust.
In 2016, MMW, acting as class counsel and on instructions from the class representative, agreed to settlement terms with counsel for Dundee. The settlement was subject to court approval. A settlement approval hearing was held in June 2017 before Justice Mullins of the Ontario Superior Court of Justice. On September 2, 2017, Justice Mullins released her decision approving the settlement and signed the Order, attached.
The Dundee Subclass are those persons who invested in Canadian Controlled Private Corporations (CCPCs) funds from their Locked-In Retirement Accounts with investment advisor Brian Verbeek, while he was employed by Dundee Securities Corporation. Members of the Dundee Subclass who have not opted out of the class action are entitled to a share of the settlement. Settlement funds will be administered by Rice Point, a firm that specializes in the administration of class action settlements and the distribution of settlement funds. Members of the Dundee Subclass are encouraged to read the Order for details of how the settlement will be administered. Rice Point will be contacting members of the Dundee Subclass with more information. However, if you are a member of the Dundee Subclass, and you have moved, we urge you to contact Rice Point at the address provided in the Order.
Class Action File No. 01-B2684 Part 1
Class Action File No. 01-B2684 Part 2
Posted in Class Actions | Tagged Class Action Settlement; Ivany v. Verbeek; Ivany v. Dundee Securities Corporation
Justice Thomas Lederer recently dismissed Subway’s application seeking a Norwich Order against Trent University. In doing so, he provided clarity on a “rare and extraordinary discretionary relief”1 of which there is little jurisprudence on in Canada. Continue Reading…
Posted in Practice and Procedure | Tagged action, discovery, jurisprudence, Norwich Order
