Law Times

Page 6 November 9, 2015 • Law Times www.lawtimesnews.com COMMENT Chance for a reset here was plenty of praise for Prime Minister Justin Trudeau's choice of British Columbia's Jody Wilson-Raybould as fed- eral justice minister last week. "This is a real breath of fresh and experienced air in the ministry," defence lawyer Bill Trudell told Legal Feeds after Wilson- Raybould's appointment to the post last week. And according to lawyer James Morton, the appointment "is clearly sending a signal" that aboriginal issues will be important for the new government given Wilson-Raybould's background that in- cludes serving as a treaty commissioner and a regional chief of the Assembly of First Nations in British Columbia. And as a former prosecutor, she certainly has experience in the courts and the crimi- nal justice system. While there are plenty of Conservatives in the legal community, more than a few lawyers will be hoping the new government will rep- resent a substantive change from the previous regime given disagree- ments with some of them over issues such as mandatory minimum sentences and aboriginal rights. It's unclear whether the Liberals will offer much change on that issue, but their approach so far and the appointment of Wilson-Raybould — who touts herself as having "brought people together" in her career — at least suggest a potential shift toward a more co-operative tone. And with 46 lawyers in the Liberal caucus and seven of them in Trudeau's 30-member cabinet, he'll have plenty of legal expertise to draw from. For Wilson-Raybould, a key immediate priority will be figuring out the government's response to the looming deadline on physi- cian-assisted suicide. With one year almost having passed since the Supreme Court's ruling to lift the ban, the new minister will have to ARTICLE ON PREJUDGMENT INTEREST MISSED A KEY POINT Law Times recently published an article (see "Ontario courts differ on prejudg- ment interest," Oct. 19) on the temporal application of the new prejudgment in- terest rate on non-pecuniary damages in motor vehicle accident cases. The debate, as framed in the article and the conf licting case law, misses the point. It is founded on the misunder- standing that the immediate application of the new rate to ongoing actions would be retroactive. On its face, the new s. 258.3(8.1) of the Insurance Act takes immediate and prospective effect with respect to all pro- ceedings, including ongoing matters. The characterization of this as retroactive de- pends on the mistaken assumption that plaintiffs in ongoing proceedings have an existing right to prejudgment interest at a certain rate that is being taken away. In fact, s. 128(1) of the Courts of Justice Act specifies that a right to prejudgment interest only arises once a plaintiff has be- come a "person who is entitled to an order for the payment of money." Plaintiffs are not entitled to an order for the payment of money merely by vir- tue of having commenced an action; they need to have obtained a judgment in their favour first. There is no right to prejudg- ment interest (at a particular rate or at all) until the condition of being a "person who is entitled to an order for the payment of money" is satisfied. Plaintiffs in ongo- ing actions do not have a vested right to prejudgment interest. They only have the contingent possibility of a right to pre- judgment interest if they establish their claims for damages at trial or on a disposi- tive motion and if the law does not change in the interim. Instead of addressing the foregoing, a great deal of the Law Times article is de- voted to exposition of the idea that the immediate application of the new pre- judgment interest rate would be incor- rect because it would result in a windfall to insurers. This point is a red herring that requires rebuttal. Most importantly, the purpose of prejudgment interest is to compensate the plaintiff, not to prevent alleged windfalls to non-party insurance companies. Commentators who focus on the latter are engaged in low-level populist rhetoric, not legal argument. We also ought to recall the genesis of the separate prejudgment interest rate on non-pecuniary damages. It was in- troduced following amendments to the Courts of Justice Act in 1989 as delib- erately and substantially lower than the prevailing bank rate-based prejudgment interest rates of the time. The goal was to avoid double compensation to plaintiffs for the effect of inf lation. Prejudgment interest is intended in part to compensate for the effects of inf lation, but non-pecu- niary damages are already adjusted for it. The retention of the five-per-cent rate even as bank rates have plunged below that level resulted in an even more acute problem of overcompensation than the situation that prompted the adoption of the five-per-cent rate in the first place. The real question is why the five-per- cent rate remains in place for non-pecu- niary damages in personal injury actions not based on motor vehicle accidents. Douglas Treilhard, Buset & Partners LLP, Thunder Bay, Ont. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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On the assisted-suicide ruling, it would be perfectly reasonable for the government to continue the consultation process and take some time to draft its legislative response. The same applies to promises such as the one to bring 25,000 Syrian refugees to Canada this year. It's a laudable goal, but Canada can demonstrate its commitment to acting on the issue without mov- ing too fast in the face of the many logistical chal- lenges. There's no doubt lawyers will have plenty of squabbles with the new Liberal government as well, but if it acts with prudence and based on evi- dence and consultation, there's a chance for a reset of the relationship. Let's hope Wilson-Raybould takes advantage of it. LT T u Letter to the editor encourages readers to send us letters, but will edit them for space, taste, and libel consideration. Please provide your name, address and contact number and send all letters to: Law Times, 2075 Kennedy Rd., Toronto, Ont. M1T 3V4 E-mail: glenn.kauth@thomsonreuters.com

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