



COURT OF APPEAL FOR ONTARIO

CITATION: MacLeod v. Marshall, 2019 ONCA 842

DATE: 20191025

DOCKET: C65418

Sharpe, van Rensburg and Thorburn
    JJ.A.

BETWEEN

Roderick MacLeod

Plaintiff (Respondent)

and

William
    Hodgson Marshall,

The
    Basilian Fathers of Toronto
,

The
    Sudbury Catholic District School Board,

The
    Roman Catholic Episcopal Corporation of

The
    Diocese of Sault Ste. Marie

Defendant (
Appellant
)

Chris T. Blom and Susan Metzler for the appellant, The
    Basilian Fathers of Toronto

Paul Pape, Shantona Chaudhury, and Cristina Senese for the
    respondent, Roderick MacLeod

Heard: September 6, 2019

On appeal from the judgment of Justice Arthur M. Gans of
    the Superior Court of Justice, sitting with a jury, dated April 26, 2018 and
    from his order dated August 29, 2018, with reasons reported at 2018 ONSC 5100.

Thorburn J.A.:


OVERVIEW

[1]

This is an appeal by The Basilian Fathers of Toronto (the Basilians) of
    a jury verdict and an order for prejudgment interest. The Basilians claim the
    jury instruction on how to assess damages for past income loss was wrong, the
    punitive damages award was excessive, and prejudgment interest ought not to
    have been awarded at the rate of 5%.

[2]

The Respondent, Roderick MacLeod, was born in 1949. He was sexually
    abused more than 50 times by Father Marshall while he was a student at St.
    Charles College, a school run by the Basilians.

[3]

The Basilians were aware that Marshall was abusing boys before they
    ordained him as a priest. Marshall taught for approximately 36 years and the
    Basilians repeatedly moved him to different schools when complaints of sexual
    abuse arose. The jury heard evidence from four other victims of Marshalls
    abuse. In separate criminal proceedings, he pleaded guilty to sexually abusing
    17 minors.

[4]

MacLeod testified that he failed Grade 12 because he skipped school to
    avoid Marshall. He eventually graduated from high school and attended
    university. He then served in the military with exemplary reviews, achieving
    the rank of Captain. He said he left the military because his commanding
    officer reminded him of Marshall and he wanted to get away from him. He pursued
    other opportunities, first as an entrepreneur, then as a financial advisor, and
    later a physiotherapist. His two marriages ended in divorce. In 2010, he
    listened to a radio show about sexual abuse, which caused him to reflect on his
    own experience. In 2012, he initiated proceedings.

[5]

This case went to trial in 2018. The parties agreed that MacLeod had
    established on a balance of probabilities that:

1.

Marshall had a duty of care to MacLeod;

2.

Marshall breached his duty of care to MacLeod; and

3.

MacLeod suffered injury as a result of the abuse for which the Basilians
    are vicariously liable.

[6]

The Basilians agreed that the abuse caused or materially contributed to
    MacLeods general damages, aggravated damages, and future care costs. They did
    not admit that the sexual abuse resulted in any loss of income or should
    attract punitive damages.

[7]

The jury awarded MacLeod $350,000 in general damages, $75,000 in
    aggravated damages, $56,400 in future treatment costs, $1,588,781 lump sum for
    income loss (to include both past and future), and $500,000 in punitive
    damages. The jury award exceeded all offers to settle. The trial judge awarded
    MacLeod prejudgment interest on general and aggravated damages at the annual
    rate of 5%.

[8]

The Basilians raise three grounds of appeal:

1.

the trial judge erred by failing to properly instruct the jury on the burden
    of proof for claims for past loss of income for sexual abuse;

2.

the award of punitive damages was excessive; and

3.

the trial judge erred in setting the rate of prejudgment interest at 5%
    for non-pecuniary damages.

[9]

For the reasons that follow, I find that the legal instruction given to
    the jurors to determine entitlement and quantum of damages for loss of income
    contained no reversible error. The instruction in respect of punitive damages
    contained no error and the damages awarded were not so excessive as to call for
    the intervention of this court. However, the trial judge erred with respect to
    prejudgment interest.

ANALYSIS

Issue One: The Jury Instruction Regarding Loss of Income

The Parties Positions

[10]

The
    Basilians assert that Macleod must be able to prove that past loss of income
    was caused by the sexual abuse on a balance of probabilities. The Basilians
    claim the trial judge erred in telling the jury that MacLeods claim for past
    loss of income had to be proven on a lesser standard of real and substantial
    possibility, which should only apply to future loss of income.

[11]

MacLeod claims that in deciding whether the sexual abuse was the
    cause of economic loss, the jury was correctly told that they must assess how
    MacLeods life would have proceeded had he not been sexually assaulted. Such
    hypothetical events need not be proven on a balance of probabilities, but
    simply on the basis of whether there was a real and substantial possibility
    that these losses were caused by the sexual abuse, and if so, the percentage
    chance that that possibility would have materialized. MacLeod relies on the
    principles enunciated in
Athey v. Leonati
, [1996] 3 S.C.R. 458, at para. 27.

Hypothetical events (such as how
    the plaintiffs life would have proceeded without the tortious injury) or
    future events need not be proven on a balance of probabilities. Instead, they
    are simply given weight according to their relative likelihood. For example, if
    there is a 30 per cent chance that the plaintiffs injuries will worsen, then
    the damage award may be increased by 30 per cent of the anticipated extra
    damages to reflect that risk. A future or hypothetical possibility will be
    taken into consideration as long as it is a real and substantial possibility
    and not mere speculation. [Citations omitted.]

[12]

MacLeod
    claims that a separate consideration of past and future loss of income does not
    apply in this case because the sexual abuse occurred while MacLeod was a minor
    with no established career path. MacLeod also claims that all losses would have
    occurred
after
the abuse; therefore, all income losses are
    hypothetical. In these circumstances, the plaintiff need only establish that there
    is a real and substantial possibility that MacLeods impaired earning capacity was
    caused by the abuse.

The Standard of Proof to Establish Entitlement to Damages for Pecuniary
    Loss

[13]

Normally,
    a plaintiff has the burden of proving that s/he suffered damage as a result of
    the defendants wrongful conduct, and if so, the quantum of that
    damage. This is true in respect of each head of damages:
Andrews v. Grand
    & Toy Alberta Ltd.
, [1978] 2 S.C.R. 229, at pp. 235-236.

[14]

The
    objective of awarding damages for past and future loss of income is to put
    MacLeod in the same financial position he would have been in, had he not been
    sexually abused. Past loss of income is income loss between the date of the
    defendants wrong and trial, while future loss of income is loss of income
    after the trial:
Watkins v. Olafson
, [1989] 2 S.C.R. 750, at pp.
    771-774.

[15]

Typically,
    in the case of an adult plaintiff who was working at the time of the accident,
    there is a clear benchmark from which to determine whether there was a loss of
    income and to quantify past loss of income: for example, where a plaintiff was
    working and earning a given income before an accident and is no longer able to
    work after the accident, past income can be used to determine what the future
    income would be. As such, it should be determined on a balance of
    probabilities.

[16]

However,
    in
Mallett v. McMonagle
, [1970] A.C. 166, at p. 176, cited
    with approval in
Janiak v. Ippolito,
[1985] 1 S.C.R. 146, at p. 170,
    Lord Diplock held that:

The role of the court in making an
    assessment of damages which depends upon its view as to what will be and what
    would have been is to be contrasted with its ordinary function in civil actions
    of determining what was. In determining what did happen in the past a court
    decides on the balance of probabilities. Anything that is more probable than
    not it treats as certain. But in assessing damages which depend upon its view
    as to what will happen in the future or would have happened in the future if
    something had not happened in the past, the court must make an estimate as to
    what are the chances that a particular thing will or would have happened and
    reflect those chances, whether they are more or less than even, in the amount
    of damages which it awards.

[17]

In
    the case of a claim for economic loss following childhood sexual abuse,
both
past and future loss of income claims involve a consideration of hypothetical
    events because the child had not earned income prior to the assault. The jury
    must therefore determine not what
did
happen in the past but the
    chance that something
would
have happened, had the sexual abuse not
    happened in the past.

[18]

This
    requires a determination of loss of earning capacity, not the loss of actual
    earnings. Since the plaintiff is not required to prove hypothetical events on a
    balance of probabilities, the burden of proof for entitlement is that of real
    and substantial possibility:
Athey
, at para. 27;
Janiak
, at
    p. 170. This is because we must now consider what kind of career the victim
    would have had, had he not been sexually abused:
Andrews
, at p. 251.

Application to the Facts

[19]

For
    these reasons, in addressing the issue of economic loss in this case, the jury
    should have been instructed to:

1.

Determine responsibility for the tort on a balance of probabilities:
    This means the jury had to satisfy themselves on a balance of probabilities
    that Marshall committed the tortious act of sexually abusing MacLeod resulting
    in harm;

2.

Examine the possibility of economic harm: If responsibility for the
    tort is established, the jury must evaluate whether there is a real and
    substantial possibility that MacLeod would have earned more income than he did
    up to the date of trial and beyond, had he not been sexually abused; and

3.

Where a real possibility of economic harm is established, quantify the
    harm: Where the jury is satisfied that there is a real and substantial
    possibility that MacLeod would have earned more income, the jury must assess
    the percentage chance that economic loss would be sustained and quantify
    damages in accordance with that percentage chance.

[20]

In
    this case, the Basilians admitted liability for general damages, aggravated
    damages, and future care costs resulting from the sexual abuse. MacLeod
    therefore established his entitlement to general and aggravated damages and
    future care costs on a balance of probabilities.

[21]

There
    is no dispute that MacLeod earned less than he would have, had he remained in
    the armed forces. However, there were several possible reasons for his leaving
    the armed forces and, through no fault of MacLeods, it is not clear which
    cause resulted in the financial loss.

[22]

Therefore,
    in order to establish entitlement to past and future economic loss, MacLeod
    need only prove there is a real and substantial possibility that the sexual
    abuse caused his
economic
loss.

Quantification of Damages

[23]

Where a plaintiff establishes that there is a real and substantial
    possibility the sexual abuse caused economic loss, damages are assessed by
    conducting the following analysis:

1.

What economic opportunities the plaintiff might have had, had the sexual
    abuse not taken place;

2.

What further income the plaintiff could have earned, if any; and

3.

The chance that the plaintiff would have earned that additional amount,
    after taking into account the various contingencies.

[24]

In
    quantifying the financial loss, the trier of fact must assess the chance that
    what the plaintiff says would have happened, would indeed have happened. In
    such cases, the plaintiff is entitled to compensation, but commensurate with
    the percentage chance that the plaintiff would have earned that income but for
    the defendants actions. Damages are commensurate with the value of the chance
    of earning that income:
Janiak
, at p. 170;
Mallet
, at p. 176.

[25]

In
    assessing damages in this case therefore, the jury should have been instructed
    to:

1.

Determine what MacLeods life could have looked like and what economic
    opportunities he might have had, had the sexual abuse not taken place;

2.

Decide what the monetary value is of those possible opportunities, had
    the sexual abuse not taken place;

3.

Estimate the chance that MacLeod would have earned the sum(s) claimed,
    had the abuse not taken place; and

4.

Quantify damages commensurate with the chance that that opportunity
    would have materialized. Compensation is limited to the degree of probability
    that the defendant was responsible for the loss.

[26]

In
    doing so, it is desirable that the jury be provided with examples to illustrate
    the point. For example, if MacLeod had submitted that but for the sexual
    assault, he could have remained in the armed forces and become a Lt. Colonel,
    the jury should consider:

1.

Whether he could have continued to rise through the ranks to become a
    Lt. Colonel;

2.

What additional money he would have earned if he had attained and
    remained in that rank;

3.

The chance he would have achieved this; and

4.

Ensure that the damage award is proportionate to the percentage chance
    that he would indeed have become a Lt. Colonel with all of the past and future
    financial benefits that would have entailed.

[27]

The
    implications for plaintiffs where there is an assessment of chance are
    far-reaching and not necessarily beneficial to plaintiffs because a 60 per cent
    probability will only lead to 60 per cent damages, not 100 per cent as formerly
    was the case. S.M. Waddams, The Law of Damages, loose-leaf ed. (Aurora, Ont.:
    Canada Law Book, 2010), at para. 13.360;
Andrews
, at p. 253.

[28]

The
    trial judge correctly instructed the jury as follows:

1.

The Basilians conceded that MacLeod had established on a balance of
    probabilities that Marshall had breached his duty of care to MacLeod, leading
    to general damages, aggravated damages, and costs for future care, for which
    the Basilians were liable.

2.

The Basilians did not agree that Marshalls actions caused MacLeod any
    pecuniary loss.

3.

The threshold test to establish entitlement to damages for pecuniary
    loss in this case is whether there was a real and substantial possibility that
    the sexual abuse by Marshall caused MacLeod pecuniary loss. This lower standard
    applies to both past and future loss of income because the jury is considering
    not what
did
happen but what
would
have happened had the
    abuse not taken place. The trial judge instructed the jury that:

[I]n respect of the income loss claim the plaintiff
    need not prove the anticipated loss on a balance of probabilities. He need only
    satisfy you that there is a real and substantial risk or possibility that these
    losses have been sustained and will be sustained or realized in the future.

4.

In quantifying the damages, the jury must consider the various possible
    financial opportunities MacLeod could have pursued, the chance that he would
    have pursued them (bearing in mind the contingencies), and quantify the loss by
    awarding him the damages commensurate with the chance that MacLeod would have
    earned that additional income. In assessing damages for pecuniary loss, the
    trial judge instructed the jury as follows:

Pecuniary Losses. This head of damages speaks to the loss of
    past income and loss of future earnings or future income. In this respect you have
    to ask yourself, what sort of career would Mr. MacLeod have had but for the
    abuse?



[A]t this stage in your deliberations youre called upon to
    estimate what the chances were that a particular event or events were likely to
    happen or would have happened to Mr. MacLeod had the abuse not occurred.



But assuming you choose one of these income earning
    scenarios, your computation at that juncture may not be finished. You have to
    consider whether there were any contingencies, both negative and positive, that
    should factor into your deliberations.

Contingencies are factors which are intended to reflect the
    realistic risk that something could impact someones earning potential outside
    of Marshalls wrongful conduct.



In this respect, you may find that there are no additional
    contingencies that should be factored into the equation since they are already
    contained or subsumed in the average level or earnings with which you were
    provided, both in and out of the Canadian Forces.



Indeed, there may be positive contingencies that
    were not considered or anticipated that could have impacted the numbers
    alternatively. You may also conclude that there was no loss at all on the basis
    of the defence approach that the changes in jobs had nothing to do with the
    abuse but for perhaps the one year that he was prepared to concede, namely the
    one year where he was held back in grade 12.

[29]

MacLeod
    offered five possible income earning scenarios:

1.

If he remained in the army until 1992 and retired at the rank of Major,
    he would have earned an additional $1,036,300;

2.

If he remained in the army until 1992 and retired as a Lt. Colonel, he
    would have earned an additional $1,180,800;

3.

If he remained in the army until 2008 and retired as a Major, he would
    have earned an additional $1,253,100;

4.

If he remained in the army until 2008 and retired as a Lt. Colonel, he
    would have earned an additional $1,532,000; and

5.

If he earned the average income of males in the civilian workforce who
    graduated in the year he graduated, from an Ontario university, he would have
    earned an additional $1,786,500.

[30]

The
    jury awarded damages for past and future economic loss in the amount of
    $1,588,781 without explanation.

[31]

While
    the charge might have been put more clearly in respect of the fact that damages
    for income loss must be commensurate with the percentage chance that the
    opportunity would have materialized, the trial judge made no reversible error
    in articulating the legal principles. The Basilians counsel did not object to
    the charge and made no submissions to the trial judge or in his closing to the
    jury on this issue.

[32]

For
    these reasons, I would dismiss this ground of appeal.

Issue Two: Punitive Damages

[33]

The
    question on an appeal of punitive damages is whether the quantum of damages is
    so plainly unreasonable and unjust as to satisfy the court that no jury
    reviewing the evidence as a whole and acting judicially could have arrived at
    it. The more reprehensible the conduct, the higher the rational limits to the
    potential award:
Whiten v. Pilot Insurance Co
., [2002] 1 S.C.R. 595,
    at paras. 96, 112.

[34]

The
    factors enumerated in
Whiten
, at para. 113, to determine the
    blameworthiness of the defendants conduct include:

1.

whether the misconduct was planned and deliberate;

2.

the intent and motive of the defendant;

3.

whether the defendant persisted in the outrageous conduct over a lengthy
    period;

4.

whether the defendant concealed or attempted to cover up the misconduct;

5.

the defendants awareness that what was done was wrong;

6.

whether the defendant profited from the misconduct; and

7.

whether the interest violated by the misconduct was known to be deeply
    personal to the plaintiff (e.g., professional reputation) or a thing that was
    irreplaceable.

[35]

The
    jury granted $500,000 in punitive damages, well over the $225,000 range
    suggested by the trial judge. The trial judge asked the jury to provide full
    particulars on the conduct the jury considered as justification for the
    punitive damages award. The jury articulated the following reasons for the
    punitive damages award, which correspond closely with several of the
Whiten
factors:

Concealment: silent shuffle undertaken to divert in
    conjunction with complaints, avoiding scandal, neglected to document offences.
    Put children in harms way  grossly negligent. No reconciliation with the
    victims, did not follow own policy from 1991. Betrayal of trust with the
    community.

[36]

In
    rendering its award, the jury was no doubt taking into account the evidence
    that the Basilians knew Marshall had been abusing boys before he was even
    ordained, they allowed Marshall to sexually abuse children for more than three
    decades as a teacher and religious figure, and they decided to move him to
    different schools when incidents of abuse were reported instead of preventing
    further harm.

[37]

While
    the award is high, the jury took into account the general objective of punitive
    damages as punishment, deterrence, and denunciation. The decision also addresses
    the factors set out in
Whiten
to determine the blameworthiness of the
    defendants conduct. The more reprehensible the conduct, the higher the
    rational limits for punitive damages.

[38]

The
    jury may well have been concerned by the fact that the Basilians did not follow
    their own policy set in 1991, regarding the need to reach out to the victims.
    This failure to follow their own policy undercuts the Basilians argument that
    they should not be judged by contemporary standards, as the Basilians failed to
    meet even their own standards.

[39]

For
    these reasons, the quantum is not so plainly unreasonable and unjust as to
    warrant judicial interference. I would also dismiss this ground of appeal.

Issue Three: Prejudgment Interest

[40]

The
    last issue raised on this appeal is whether the trial judge exercised his
    discretion pursuant to s. 130 of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43 (
CJA
),

and more specifically, whether he
    considered the changes in market interest rates when exercising his discretion
    to depart from the default rate.

[41]

The
    endorsement dealing with prejudgment interest indicates that the Basilians
    asked the trial judge to exercise his discretion under s. 130 of the
CJA
and that s. 258.3(8.1) of the
Insurance Act
,
R.S.O. 1990, c.I.8, affects that discretion. The
    Basilians argued that s. 258.3(8.1) of the
Insurance Act
changed
    the rate of prejudgment interest to the bank rate, to be calculated pursuant
    to s. 127 of the
CJA
. Subsection 258.3(8.1) reads as
    follows:

Subsection 128(2) of the
Courts of Justice Act
does not apply in respect of the calculation of prejudgment interest for
    damages for non-pecuniary loss in an action referred to in subsection (8).

The Law in Respect of Prejudgment Interest

[42]

Section
    130 of the
CJA
provides that:

130
(1) The court may, where it
    considers it just to do so, in respect of the whole or any part of the amount
    on which interest is payable under section 128 or 129,

(a) disallow interest under either section;

(b) allow interest at a rate higher or lower than
    that provided in either section;

(c) allow interest for a period other than that
    provided in either section.

(2) For the purpose of subsection (1), the court
    shall take into account, [among other things]

(a) changes in market interest rates

[43]

A
    person who is entitled to an order for the payment of money is entitled to
    interest at the prejudgment interest rate, calculated from the date the cause
    of action arose to the date of the order:
CJA
,

s. 128(1).

[44]

However,
    s. 128(2) of the
CJA
provides that [d]espite subsection (1), the rate
    of interest on damages for non-pecuniary loss in an action for personal injury
    shall be the rate determined by the rules of court. Rule 53.10 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, provides that the prejudgment
    interest rate on damages for non-pecuniary loss in an action for personal
    injury is 5% per year.

[45]

The
    reason for the 5% rate for non-pecuniary loss in an action for personal injury
    is as follows: it was a legislative response to the 1987 Ontario Law Reform
    Commission

Report for Compensation for Personal Injuries and Death,
    which criticized the practice of awarding damages for pecuniary and
    non-pecuniary damages at the same rate because there is a cap on non-pecuniary
    damages; this cap is adjusted for inflation. The Report concluded that giving
    the default interest rate (which was much higher than 5% at the time) was
    effectively double compensation for inflation. The lower rate of 5% was
    therefore more appropriate:
Awan v. Levant
, 2015 ONSC 2209, affd 2016
    ONCA 970, 133 O.R. (3d) 401, at para. 23.

[46]

However,
    as Matheson J. noted in
Awan
, the mischief that gave rise to the
    subsection [128(2)] is no longer served by a 5% rate given the interest rate
    climate throughout the period of time relevant to this case, as interest rates
    had dropped even further. For this reason, s. 258.3(8.1) of the
Insurance
    Act
was amended through the enactment of the
Fighting Fraud and
    Reducing Automobile Insurance Rates Act
, 2014, S.O. 2014, c. 9, such that
    the 5% rate did not apply in the context of motor vehicle accident actions.

Application to the Facts

[47]

Contrary
    to the assertion made by the Basilians before the trial judge, s. 258.3(8.1) of
    the
Insurance Act
does not apply.

[48]

However,
    MacLeod does not dispute that:

[t]rial judges enjoy a wide discretion under s. 130 of the
CJA
to allow pre- or post- judgment interest at a rate higher or lower than the
    rate of interest prescribed by the
CJA
, where they consider it just to
    do so. An appellate court may interfere with the discretionary decision of a
    trial judge only where it reaches the clear conclusion that there has been a
    wrongful exercise of discretion by the trial judge in that no weight, or
    insufficient weight, has been given to relevant considerations:
Stellarbridge
    Management v. Magna International
(2004), 71 O.R. (3d) 263 (C.A.), at
    para. 85, leave to appeal refused, [2004] S.C.C.A. No. 371.

[49]

As
    Matheson J. noted in
Awan
, at
    para. 28
:

It must be remembered that an award of pre-judgment interest is
    compensatory. Even if s. 128(2) did apply, I would exercise my discretion to
    impose the ordinary rate of 1.3%. In reaching that conclusion, I have had
    regard for the interest rates over the relevant period, the circumstances of
    this case and the different approach to assessing damages in defamation cases
    from non-pecuniary damages in other areas.

[50]

Similarly,
    this court in
Cobb v. Long Estate
, 2017 ONCA 717, 416 D.L.R. (4th) 222,
    at para. 86, held that:

Interest rates fluctuate over time
    and it only makes sense that the interest rates set by the court should reflect
    these changes as well. The goal is to fairly compensate an injured party and to
    restore to him or her, so far as money is able to do, all that he or she has
    lost as a result of the injury  but neither too much, nor too little.

[51]

In
    this case, the trial judge considered the Basilians request that he exercise
    his discretion to impose prejudgment interest at 1.3% for non-pecuniary
    damages. He declined to do so for the following reasons:

The current action is a claim for
    damages arising from an historical sexual assault, and as such, section
    258.3(8.1) of the
Insurance Act
has no application.
Therefore
, I have concluded that
the
    default prejudgment interest rate of 5% is applicable

on
    the general and aggravated damages from the date of the Notice of Claim to the
    date of judgment. [Emphasis added.]

[52]

In
    other words, the trial judge held that the 5% prejudgment interest rate was
    applicable
because
s. 258.3(8.1) of the
Insurance Act
did not
    apply.

[53]

While
    the trial judge was correct that s. 258.3(8.1) does not apply, his conclusion
    that therefore the default prejudgment interest rate of 5% is applicable is not
    correct in law.

[54]

He
    should have taken into account the factors listed in s. 130(2) of the
CJA
,
    including the changes in market interest rates. He did not. In so doing, he
    placed no weight or insufficient weight on the consideration of market interest
    rates.

[55]

I
    note that interest rates during this period were low and no issue was taken by
    the respondent with the 1.3% requested to keep pace with the low rates, save
    for the argument that s. 258.3(8.1) does not apply.

[56]

I
    accept therefore that the annual prejudgment interest rate should have been
    1.3%. I would therefore allow this ground of appeal and vary the judgment
    accordingly.

SUMMARY OF CONCLUSIONS

[57]

For
    the above reasons, I find that the trial judge made no reversible error in
    instructing the jury on the burden of proof for claims of past loss of income.

[58]

Secondly,
    the quantum of punitive damages awarded by the jury is not so plainly
    unreasonable and unjust as to satisfy the court that no jury reviewing the
    evidence as whole and acting judicially could have arrived at it.

[59]

Finally,
    in awarding MacLeod 5% prejudgment interest, the trial judge understood that
    there was a general right to exercise discretion but did not articulate any of
    the factors listed in s. 130 of the
CJA,
and more importantly, he
    concluded that the prejudgment rate should be 5%
because
s. 258.3(8.1)
    does not apply in this case. In so doing, he failed to consider the fluctuation
    in market rates from the time the claim was issued to the time judgment was
    rendered.

[60]

For
    these reasons, I would dismiss the appeal on the first two issues and grant the
    appeal in respect of prejudgment interest.

[61]

The
    parties are to provide written costs submissions of no more than five pages
    within ten days.

Released: RJS October 25, 2019

J.A.
Thorburn J.A.

I agree. Robert J.
    Sharpe J.A.
I agree.
K. van Rensburg J.A.




