Wilson v. Cranley, 2014 ONCA 844

• Judge: Laskin, Gillese and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 15, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 844;(2014), 325 O.A.C. 396 (CA)

Wilson v. Cranley (2014), 325 O.A.C. 396 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.006

Dean Wilson (plaintiff/respondent) v. Stephen Cranley (defendant/appellant)

(C58281; 2014 ONCA 844)

Indexed As: Wilson v. Cranley

Ontario Court of Appeal

Laskin, Gillese and Pardu, JJ.A.

November 27, 2014.

Summary:

The plaintiff sued the defendant for damages arising out of a motor vehicle accident. The defendant made an offer to settle before trial. The offer was for $50,000 in damages, plus interest, for a total of $61,609.56. Following a six day trial, the jury awarded the plaintiff $60,000, which included $15,000 for general damages and $45,000 for loss of future income. After applying the $30,000 statutory deductible mandated by s. 267.5(7) of the Insurance Act, the award for general damages was reduced to zero. The defendant sought partial indemnity costs from the date of his offer based on rule 49.10 of the Rules of Civil Procedure.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 4302, found that the jury's award was more favourable than the defendant's offer by about $700 once notional prejudgment interest of $2,299.31 was added to the $15,000 general damages award. The plaintiff was therefore presumptively entitled to costs. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Interest - Topic 5011

Interest as damages (prejudgment interest) - General principles - Interest on nonpecuniary general damages - [See first Practice - Topic 7246 ].

Interest - Topic 5541

Interest as damages (prejudgment interest) - Practice - General - [See first Practice - Topic 7246 ].

Practice - Topic 7244

Costs - Party and party costs - Offers to settle - Amount recovered - Calculation - [See first Practice - Topic 7246 ].

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - Wilson sued Cranley for damages arising out of a motor vehicle accident - Cranley offered to settle for $50,000 in damages, plus interest, for a total of $61,609.56 - Following a six day trial, the jury awarded Wilson $60,000, which included $15,000 for general damages and $45,000 for loss of future income - After applying the $30,000 statutory deductible mandated by s. 267.5(7) of the Insurance Act, the award for general damages was reduced to zero - Cranley sought partial indemnity costs from the date of his offer based on rule 49.10 of the Rules of Civil Procedure - The trial judge found that the jury's award was more favourable than Cranley's offer by almost $700 once notional prejudgment interest of $2,299.31 was added to the $15,000 general damages award - Wilson was therefore presumptively entitled to costs - The Ontario Court of Appeal dismissed Cranley's appeal, stating that "Pre-judgment interest is ordinarily awarded, absent special circumstances, to reflect the value of the money wrongfully withheld from the plaintiff ... As pre-judgment interest would, in the ordinary course, be added to the general damages award ... and the general damages award should be considered absent the statutory deductible ..., it follows that pre-judgment interest should be notionally added to the general damages award from the date of the notice of claim, for the purpose of determining whether the judgment was more favourable than the Offer." - See paragraphs 12 to 22.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - Wilson sued Cranley for damages arising out of a motor vehicle accident - Cranley offered to settle for $50,000 in damages, plus interest, for a total of $61,609.56 - Following a six day trial, the jury awarded Wilson $60,000, which included $15,000 for general damages and $45,000 for loss of future income - Cranley sought partial indemnity costs from the date of his offer based on rule 49.10 of the Rules of Civil Procedure - The trial judge found that the jury's award was more favourable than Cranley's offer by almost $700 once notional prejudgment interest of $2,299.31 was added to the $15,000 general damages award - Wilson was therefore presumptively entitled to costs - Cranley appealed, arguing that the trial judge failed to properly consider his offer to settle, as required by rule 49.13 of the Rules of Civil Procedure - The Ontario Court of Appeal dismissed Cranley's appeal - The trial judge expressly referred to Cranley's offer - He was fully aware that the offer was a "near miss" and he took that into consideration when he applied the requisite holistic approach - The trial judge considered the full circumstances surrounding the offer, including Wilson's offers to settle and Cranley's failure to participate in the statutorily mandated mediation that Wilson had requested - See paragraphs 23 to 32.

Cases Noticed:

Rider et al. v. Dydyk (2007), 231 O.A.C. 169; 286 D.L.R.(4th) 517; 2007 ONCA 687, leave to appeal refused (2008), 385 N.R. 400 (S.C.C.), refd to. [para. 14].

Pilon v. Janveaux et al. (2006), 211 O.A.C. 19 (C.A.), refd to. [para. 14].

Lawson v. Viersen (2012), 287 O.A.C. 107; 346 D.L.R.(4th) 518; 2012 ONCA 25, refd to. [para. 17].

Kowlaczewski (Andrew) Insurance Brokers Ltd. v. Hunt et al., [2001] O.A.C. Uned. 252 (C.A.), refd to. [para. 20].

Elbakhiet et al. v. Palmer et al. (2014), 323 O.A.C. 300; 121 O.R.(3d) 616; 2014 ONCA 544, refd to. [para. 23].

Counsel:

Chris G. Paliare and Andrew Lokan, for the appellant;

James L. Vigmond and Brian Cameron, for the respondent.

This appeal was heard on October 15, 2014, before Laskin, Gillese and Pardu, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., delivered the following judgment for the court on November 27, 2014.