Posted: February 27, 2017
By: Steve Rastin

The civil suit Mandel v. Fakhim (2016) arose when the plaintiff commenced a claim for damages after a fairly minor motor vehicle accident that he claimed caused him to develop chronic pain. Although the plaintiff sued for over $1 million in damages, the jury awarded him only $3,000 in general/non-pecuniary damages for pain and suffering, and no amount for special damages. Because Ontario law dictates that awards for non-pecuniary damages from motor vehicle accidents are subject to a mandatory deductible amount (which was $36,905.40 at the time of the trial), it meant that the plaintiff would receive nothing.

Justice Myers believed that the jury verdict suggested one of two things – the jury did not believe the plaintiff’s testimony as to the extent of his injuries and/or they did not believe the plaintiff proved his injuries resulted from the fender bender caused by the defendants.

During jury deliberation, the plaintiff’s counsel asked for the right to argue on the matter of threshold. Under the Ontario Insurance Act s 267.5(5), a plaintiff is eligible for non-pecuniary damages arising from a motor vehicle accident only if their injuries ‘meet the threshold’ as a permanent serious disfigurement, or a permanent serious impairment of an important physical, mental of psychological function. However, in the current case, the judge questioned the merit of making a determination on the threshold issue because the plaintiff would not receive any general damages for pain and suffering regardless of whether his injuries met the threshold and therefore, the issue was moot and had no effect on the parties.

However, Justice Myer’s greater concern regarding the matter was that if he found the plaintiff had met the threshold, it would be mean he disagreed with the jury’s decision. The judge noted, to find that the plaintiff met the threshold would mean that he believed the plaintiff suffered at least most of the injuries he alleged and that the injuries were caused by the accident involving the plaintiff’s and defendant’s vehicles. Referencing Justice Brown’s ruling in Clark v. Zigrossi, Justice Myers noted that an inconsistency between a judge’s determination on a threshold motion and the jury’s determination of general damages could result in the emasculation of the right to a jury trial.

On the other hand, the judge noted that the legislature has granted judges the ability to determine threshold motions even when a jury is engaged.  Therefore, the legislature must have intended to give judges more power than they normally have, under the Rules of Civil Procedure, to pre-empt a jury verdict based on their own findings. He added that, while judges are obligated to consider a jury verdict in determining a threshold motion, it does not bind the judge to the verdict.

However, Justice Myers noted that given the importance of the jury trial to the legal system, only in an exceptional case would a judge decide a threshold motion contrary to the jury verdict, particularly if the jury’s view of the facts is explicitly known. The judge did not feel that plaintiff’s counsel argued sufficiently any grounds to set aside the verdict. He noted that the case was exactly the type where the full application of the doctrine of mootness was required.

Justice Myers concluded that there was no point to making a threshold decision if it risked undermining the jury’s clear findings and also when the decision would have no effect because the plaintiff would receive no damages as a result of the jury’s verdict and the statutory deductible.

The plaintiff challenged the judge’s assertion that the threshold issue is a ‘moot point’ because, if the court finds that the threshold has been met, then the issue of costs would have to include an assessment of whether the $3,000 verdict entitled the plaintiff to presumptively receive costs.  The plaintiff’s argument was grounded in previous legislation that has since been amended and under the old rules, the Court was required to ignore the application of the statutory deductible and decide costs as if the plaintiff would receive the full amount of damages awarded by a jury. Since the amendment became effective in August 2015, the Court must apply the statutory deductible before making a decision on costs. Plaintiff’s counsel agreed that if the new rules apply to the threshold decision, then the decision would indeed be moot. At this point, the judge was tasked with deciding if the amended subsection was retroactive or retrospective in nature.

A retroactive law refers to a statute that applies to a time before it was enacted. In other words, whether or not the incident happened prior to the law, it will still apply and affect the decision. In contrast, a retrospective law refers to a statute that applies to a matter that is ruled on after it was enacted.

Although much of the action for this claim was conducted under the old insurance regime that allowed a deductible to not be taken into account in deciding future costs, Justice Myers asserted that the most important consideration is that the applicable law changed before the trial took place and before the outcome of the trial was known. Further, since August 2015, the plaintiff was well aware that if he recovered less than the statutory deductible, he would not be presumptively entitled to costs.

Justice Myers noted that he did not see anything that might have been taken from the plaintiff that was his before the amendment became effective, and the amended law did not affect the plaintiff’s interests in an unfair or arbitrary way.  Accordingly, the judge found that the amended rules apply to the current case.  

A final argument put forth by the defendants is the fact that costs awards are procedural in nature and procedural laws generally apply retroactively.  The plaintiff responded with the assertion that a party’s eligibility for costs is different than a change in the amount of costs, which suggests that cost awards should be seen as substantive rather than procedural.  However, Justice Myers asserted that this argument has no effect on his ruling because even if the amendment is substantive, he had already determined that it is retrospective and therefore applies to this case.

Based on all these considerations, Justice Myers concluded that the threshold issue is moot, and the plaintiff conceded on this finding.

This case was really about what the judge says about juries.  "While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land" (para 9).

Ontario’s insurance regulations continue to change and evolve, which can make personal injury legal proceedings that much more complicated.  At Rastin & Associates, our extensive experience and expertise in insurance law and negligence claims allows us to provide the most effective and professional representation for our clients.  If you or someone you love was hurt in an accident caused by a negligent party, call Rastin & Associates today. In an initial consultation, we can assess the facts of your case and offer honest and expert advice on the strength of your claim and your best legal options for compensation.

You can call us at  844-RASTIN1 or  email Rastinlaw.com

 


 
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Posted under Car Accidents, Personal Injury