Nemchin v. Green
2018 ONSC 2185
Superior Court of Justice, Corthorn J. April 5, 2018
Civil procedure — Interest — Prejudgment interest — Plaintiff commencing personal injury action in November 2012 and awarded general
non-pecuniary damages and damages for loss of future income in April
2017 — Retroactive application of amendment to Insurance Act which
came into force on June 1, 2015 and which provided that prejudgment
interest on non-pecuniary damages was to be determined on basis of
ss. 127 and 128(1) of Courts of Justice Act (“CJA”) not unfair to plaintiffs
who were injured in accidents that occurred before June 1, 2015 — Circumstances of case not supporting exercise of trial judge’s discretion
under s. 130(2) of CJA to depart from default prejudgment interest rate
— Plaintiff entitled to prejudgment interest on non-pecuniary damages
calculated at rate of 1.3 per cent per year — Courts of Justice Act, R.S.O.
1990, c. C.43, ss. 127, 128(1), 130(2).
Damages — Deductions — Plaintiff awarded damages for loss of
future income — Defendant entitled under s. 267.8(12) of Insurance Act
to assignment of long-term disability benefits which plaintiff was
receiving — Defendant not losing right of assignment because she
opposed question requiring jury to identify both annual loss of income
and number of years of future loss of income — No requirement existing
for temporal matching of long-term disability benefits received over
time to annualized amount for loss of future income — Insurance Act,
R.S.O. 1990, c. I.8, s. 267.8(12).
The plaintiff commenced an action for damages for personal injuries in
November 2012. In April 2017, at the conclusion of trial, she was awarded damages which included general non-pecuniary damages in the amount of $125,000
and damages for loss of future income in the amount of $600,000, reduced by
10 per cent on the basis of the jury’s finding that she was contributorily negligent. The court then heard motions on the applicable prejudgment interest rate
and whether the defendant was entitled to an assignment under s. 267.8(12)
of the Insurance Act of the long-term disability (“LTD”) benefits which the plaintiff was receiving.
Held, the applicable prejudgment interest rate was 1.3 per cent; the defendant
was entitled to an assignment of LTD benefits.
On January 1, 2015, an amendment to the Insurance Act came into force which
provided that the prejudgment interest rate applicable to non-pecuniary damages
was no longer 5 per cent per year and was to be determined on the basis of
ss. 127 and 128(1) of the Courts of Justice Act (“CJA”), subject to the court’s discretion under s. 130 of the CJA to vary the interest rate or disallow interest. The
retrospective application of that amendment to plaintiffs who were injured in
accidents that occurred on or before December 31, 2014 was not unfair. There
was no evidence before the court as to the extent to which insurers considered
the 5 per cent prejudgment interest rate when setting premiums, so it was not
clear that there would be a windfall for insurers from premiums calculated and
charged prior to the amendment coming into effect. There was nothing about the
circumstances of this case to support the exercise of the court’s discretion under
s. 130(2) of the CJA.