Jones v. McIssac et al., (2001) 198 Nfld. & P.E.I.R. 198 (NFTD)

• Judge: Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: December 01, 2000
• Jurisdiction: Newfoundland and Labrador
• Citations: (2001), 198 Nfld. & P.E.I.R. 198 (NFTD)

Jones v. McIssac (2001), 198 Nfld. & P.E.I.R. 198 (NFTD);

    595 A.P.R. 198

MLB headnote and full text

Temp. Cite: [2001] Nfld. & P.E.I.R. TBEd. MR.006

Sherry Jones (plaintiff) v. George McIssac (first defendant) and Brian Osbourne (second defendant) (2000 01T No. 1506)

Indexed As: Jones v. McIssac et al.

Newfoundland Supreme Court

Trial Division

Barry, J.

February 14, 2001.

Summary:

The plaintiff sued the defendants for dam­ages allegedly suffered in a minor motor vehicle accident. The defendants admitted fault, but denied that the plaintiff suffered any personal injury. The plaintiff submitted that her doctor recommended massage ther­apy and chiropractic therapy. The plaintiff exhausted her medical insurance coverage and could not afford to obtain further treat­ment. The plaintiff sought summary judg­ment under rule 17 where the defendants had no defence other than as to the amount of damages claimed. Specifically, the issue was whether the court had a discretion under the summary judgment rule to order interim or advance payment towards special or general damages, which would allow the plaintiff to obtain the recommended medical treatment. The Rules of Court did not expressly provide for an advance on damages as yet unproven.

The Newfoundland Supreme Court, Trial Division, held that a trial judge had a discre­tion under summary judgment rule 17 and admissions rule 33.03 to order an interim or advance payment of part of the claim for special or general damages where liability was admitted and the only defence was as to amount. That discretion should be exercised only in exceptional circumstances, which required proof of serious financial hardship and proof that there was no reasonable possibility that the final damage award would be less than the amount of the interim or advance payment. Where the defendants denied the plaintiff suffered any injury and absent objective medical evidence of injury, the court could not say that the plaintiff's claim had a certain minimum value (i.e., there was a genuine issue as to whether the plaintiff was injured at all). Further, the plaintiff made a bald assertion of an inability to pay for treatment, but did not prove finan­cial hardship. Accordingly, the court declined to exercise its discretion to order an interim or advance payment.

Practice - Topic 5205

Trials - General - Severance of issues - Advance payment of special or general damages - The plaintiff sued for damages following a motor vehicle accident - The defendants admitted fault, but denied that the plaintiff suffered any injury - The plaintiff sought an advance on damages to pay for massage therapy and chiropractic treatment, which she alleged she could not otherwise afford - The Newfoundland Supreme Court, Trial Division, held that the court had a discretion under summary judgment rule 17 and admissions rule 33.03 to order an interim or advance pay­ment of part of a claim for special or general damages where liability was admit­ted and only quantum was disputed - That discretion should be exercised only in exceptional circumstances, where serious financial hardship was proved and there was no reasonable possibility that the final damage award would be less than the amount of the advance payment - Where the defendants did not admit injury and there was no objective medical evidence of injury, the court could not say that the plaintiff's claim had a certain minimum value - Further, the plaintiff's bald asser­tion of an inability to pay for treatment did not prove financial hardship - Accordingly, the court declined to order an interim or advance payment - See paragraphs 25 to 37.

Cases Noticed:

Evans v. Couturier (1989), 103 N.B.R.(2d) 275; 259 A.P.R. 275 (T.D.), refd to. [para. 10].

Blanchard v. Ramsey (1996), 194 N.B.R.(2d) 70; 444 A.P.R. 70 (T.D.), refd to. [para. 11].

Campbell v. MacDonald et al. (1996), 142 Nfld. & P.E.I.R. 269; 445 A.P.R. 269 (P.E.I.S.C.), refd to. [para. 12].

Green v. Heesterman (1993), 89 B.C.L.R.(2d) 314 (S.C.), refd to. [para. 12].

Serban v. Casselman et al. (1995), 54 B.C.A.C. 297; 88 W.A.C. 297; 2 B.C.L.R.(3d) 316 (C.A.), refd to. [para. 14].

Britany v. Barbour, [1996] B.C.J. No. 317 (C.A.), refd to. [para. 14].

Monahan v. Nelson, [1996] B.C.J. No. 1755 (S.C.), refd to. [para. 14].

Rogers v. Anderson (2000), 142 B.C.A.C. 1; 233 W.A.C. 1 (C.A.), refd to. [para. 15].

Ford Motor Co. of Canada Ltd. v. Munici­pal Employees Retirement Board (Ont.) (1997), 104 O.A.C. 179; 153 D.L.R.(4th) 33 (C.A.), refd to. [para. 16].

Moore v. Vandenbosch, [1989] O.J. No. 1987, refd to. [para. 18].

Susin et al. v. Swartz, [1999] O.T.C. Uned. A16 (S.C.), refd to. [para. 19].

Lockhart v. Tremblay et al. (1998), 130 Man.R.(2d) 307 (Q.B.), refd to. [para. 20].

Ryan v. Angel and McNamara Equipment Leasing Ltd. (1983), 44 Nfld. & P.E.I.R. 349; 130 A.P.R. 349 (T.D.), refd to. [para. 21].

Manuel et al. v. Head (1988), 72 Nfld. & P.E.I.R. 211; 223 A.P.R. 211 (T.D.), refd to. [para. 26].

Lundrigan Group Ltd. v. Pilgrim (1989), 75 Nfld. & P.E.I.R. 217; 234 A.P.R. 217 (Nfld. C.A.), refd to. [para. 26].

Manchester Economic Building Society, Re (1883), 24 Ch. D. 488, refd to. [para. 26].

Seaside Holdings Ltd. v. Newfoundland (1989), 77 Nfld. & P.E.I.R. 27; 240 A.P.R. 27 (T.D.), refd to. [para. 29].

Statutes Noticed:

Automobile Insurance Act, R.S.N. 1990, c. A-22, sect. 26(1), sect. 26(3) [para. 6].

Rules of Court (Nfld.), Supreme Court Rules, rule 17.01(1), rule 17.02(b), rule 17.02(e), rule 17.02(k), rule 33.03 [para. 7].

Authors and Works Noticed:

Bowers, Linguistic Aspects of Legislative Expression (1989), pp. 31, 32 [para. 27].

Counsel:

Jacqueline Glynn, for the plaintiff;

Mark Murray, for the defendants.

This application was heard on December 1, 2000, and January 15, 2001, before Barry, J., of the Newfoundland Supreme Court, Trial Division, who delivered the following judg­ment on February 14, 2001.