Latest Case Summaries – June 2014

Gilbert v. South et al., 2014 ONSC 3485

Following a trial in which the plaintiff recovered damages for future care and housekeeping, the defendant brought a motion for an order that the plaintiff hold future accident benefits monies received in trust and repay them to the defendant, or in the alternative, an order assigning to the defendant the plaintiff’s rights to “certain future Statutory Accident Benefits”. Mr. Justice Leach dismissed the defendant’s motion for a number of reasons. First, he found that there was not “patently clear” evidence of the plaintiff’s entitlement to future accident benefits. Secondly, while some elements of the future care award might overlap with medical and rehabilitation benefits, the jury game a lump sum award which included future care expenses not recoverable as statutory accident benefits. Accordingly, there was no way to identify how much of the future care award should be subject to repayment or assignment. Third, there were temporal limitations on accident  benefits (10 year limit on med/rehab) and there was no  way of knowing how much of the future care award related to the 10 year period following the accident and how much was for the period beyond 10 years.  Read more on CanLII.

Magnone v. Dawson, 2014 ONSC 3548     

This was a motion by a defendant for costs following a jury trial.  It clarifies the application of Ryder v. Dydyk. The plaintiffs’ action for damages for injuries suffered as a result of a motor vehicle collision was dismissed.  At trial, the jury awarded the injured plaintiff $30,000 for general damages, and $46,779 for past loss of income. Her daughter was awarded general damages in the amount of $2,500. The injured plaintiff had received IRBs equal to the amount of her past loss. Accordingly, after deduction of accident benefits and application of the statutory deductibles, judgment was entered for the defendant, dismissing the action. After application of the deductible, the awards was reduced to zero. Before trial, the defendants had offered the injured plaintiff amounts in excess of what she recovered at trial, but made no offer toward the claim of her daughter. Relying on the decision of the Court of Appeal in Ryder v. Dydyk, the Plaintiffs argued that the award of $2500 to the daughter (before application of the deductible) was more favourable than the amount offered by the defendant, and that the defendant should be disentitled to costs as a result. Justice Lacoco agreed that the result for the daughter was more favourable on the one narrow aspect of her claim for general damages. However, the defendant had offered an amount of $2,500 net of deductible for the daughter’s FLA claim. Justice Lacoco concluded that the amount of the defendant’s costs attributable to the daughter’s claim for general damages was negligible and that the defendant should be entitled to his costs on a partial indemnity basis, assessed at $100,000. Read more on CanLII.

Cases summarized by Rikin Morzaria, Partner at McLeish Orlando and Board Member of the Ontario Trial Lawyers Association.

Patrick Brown


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