Law Times

Law times • OctOber 6/13, 2008 FOCUS PAGE 13 Reasoning not 'terribly chilling' to honest client Continued from page 9 Court Justice Peter Howden's deci- sion, if upheld by the Court of Ap- peal, would have impacted only a small number of plaintiffs. "I don't believe Howden's rea- soning would have been terribly chilling to any honest client, only to those whose evidence a jury re- jected entirely," he says. Garisto claimed damages for personal injury following a motor vehicle accident. He alleged he sus- tained a mild traumatic brain injury and had back pain from soft tissue injuries. The defendants disputed li- ability and damages. At trial, Garisto testified and called his family doctor and three experts to support his claims. The defence called expert evidence to the contrary and maintained Garisto's complaints were largely the product of pre-existing injuries. Garisto also made a claim for lost income, but that did not stand up and the case went to the jury only on general damages. Plaintiff's counsel asked the jury for an award of $100,000 to $120,000. The defence claimed no general damages were sustained. In his charge, the trial judge opined that an upper range of "some- where between $25,000 to $65,000 to $75,000" was appropriate. Before the jury returned its ver- knew he "had significant pre-acci- dent conditions similar to or the same as his complaints in this case" when he started the action. Fur- thermore, his own evidence under- mined that of his expert witnesses regarding his lost income claim. "The only viable claim well prior to trial was for non-pecuniary damages of less than $50,000 realis- tically," he wrote. "It is true that the plaintiff survived the defendants' threshold motion, but the decision was very much a borderline case. "My estimate to the jury indicat- ed a range of $25,000 to $65,000. The latter assumed that the plaintiff could be believed in his claims of se- vere, ongoing problems which was a question of fact for the jury, though the evidence for exceeding $50,000 was weakened by the plaintiff's pre- accident complaints, no future in- come loss, and flat demeanour. "In addition to the plaintiff's problems, at least one of the lay witnesses called on his behalf hurt his case regarding his actu- ally playing golf considerably more than the plaintiff had said, a fact which could have been determined well before trial." But Justice Robert Sharpe, writ- ing for a unanimous court consist- ing also of Justices Eileen Gillese and Robert Blair, ruled Howden erred. Sharpe said the costs conse- quences of rule 76 [the simplified procedure rule] are "the device that drives the whole system." "The purpose of the simplified procedure regime is to reduce legal costs and to enhance access to jus- tice by making available a cheaper and more expeditious procedural re- gime appropriately geared to the liti- gation of modest claims," he wrote. "That important purpose will be undermined if the costs sanctions built into the simplified procedure regime are not enforced." Still, rule 76 did provide that plaintiffs with awards less than $50,000 could recover costs if they had acted reasonably in pro- ceeding under the ordinary pro- cedure. And allowing Garisto to recover costs in this case "would not undermine the integrity" of the simplified procedure regime. "In my view, in the circum- stances of this case, the trial judge's conclusion that it was not reason- able for the plaintiff to have com- menced and continued the action under the ordinary procedure cannot be reconciled with his pre- verdict assessment of the case, both in his charge to the jury and in his ruling on the defendants' thresh- old motion," Sharpe wrote. Given the range of $25,000 to $75,000 proposed by Howden, pro- ceeding in the ordinary way could only have been unreasonable if the plaintiff or his counsel "should have realized that there was no reason- able prospect that the jury would accept the appellant's version." But in ruling on the threshold motion, Howden had declared himself "very impressed" by Garis- to's experts; he also found that Garisto's evidence was "sufficiently credible" on the threshold issue. "Moreover, although the jury plainly did not entirely accept the appellant's version of the case, nei- ther did it accept the respondents' view that the appellant had suffered no significant injury and that his claim was worth nothing," Sharpe noted. "Accepting at face value the trial judge's jury instruction and threshold ruling, I fail to see how it could not have been reasonable for the appellant to have commenced or continued the action under the ordinary procedure." The reasonableness of the appel- lant's decision to proceed under the ordinary procedure, then, had to be assessed on the basis of the facts that existed before the jury's verdict. LT dict, Howden heard a threshold motion as to whether the appellant had suffered a permanent serious impairment of an important physi- cal, mental, or psychological func- tion. He ruled in Garisto's favour. "Relying heavily on the evi- dence of Dr. Kaminska and Dr. Ogilvie-Harris, by whom I was very impressed, and the plaintiff being sufficiently credible on the impact on his daily living, my ruling is this case meets the threshold." The jury awarded $20,000, leaving Garisto with a net recov- ery of $5,000 after applying the statutory deductible. The parties agreed, however, that s. 267.5(9) of the Insurance Act mandated that costs were to be determined on the basis of the $20,000 award. Howden ruled that Garisto should be deprived of costs under rule 76.13. The rule states that where an award is less than $50,000, the plaintiff shall not recover costs unless "the court is satisfied that it was rea- sonable for the plaintiff to have com- menced and continued the action under the ordinary procedure." As Howden saw it, the plaintiff Untitled-2 1 10/1/08 12:52:35 PM WHAT CAN YOUR ONLINE RESEARCH SERVICE DO FOR YOU? CAN YOU NOTE UP ALL TYPES OF LEGISLATION? STATUTES, RULES, AND REGULATIONS? YOU CAN. KeyCiteCanada from WestlaweCARSWELL is the ONLY statute citator with true historical depth. It is also the ONLY rules citator and the ONLY regulation citator. With WestlaweCARSWELL, Based on the renowned Carswell suite of legislative citators – Canadian Statute Citations, Rules Judicially Considered, and Regulations Judicially Considered – KeyCiteCanada gives you instant access to 40 years of expert editorial analysis. www.westlawecarswell.com/youcan Request a demo for a chance to win $2,500 in AMEX gift certificates Untitled-5 1 www.lawtimesnews.com AUTHORITATIVE. INNOVATIVE. TRUSTED. 9/30/08 9:56:16 AM

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