



COURT OF APPEAL FOR ONTARIO

CITATION: Cobb v. Long Estate, 2017 ONCA 717

DATE: 20170919

DOCKET: C61467, C61471, M47419

Doherty, MacFarland and Rouleau JJ.A.

BETWEEN

C61467

Wade
    Brett Cobb, Erica Mae Cobb and James Wade Cobb,

a
    minor by his Litigation Guardian, Erica Mae Cobb

Plaintiffs

(Respondents)

and

The
    Estate of Martin T. Long

Defendant

(Appellant)

AND BETWEEN

C61471

Wade
    Brett Cobb, Erica Mae Cobb and James Wade Cobb,

a
    minor by his Litigation Guardian, Erica Mae Cobb

Plaintiffs

(Appellants)

-
    and -

The
    Estate of Martin T. Long

Defendant

(Respondent)

Chris G. Paliare and Tina H. Lie, for The Estate of
    Martin T. Long

Allan Rouben and Kris Bonn, for Wade Brett Cobb, Erica
    Mae Cobb and James Wade Cobb, a minor by his Litigation Guardian, Erica Mae
    Cobb

Heard: April 3, 2017

On appeal from the judgment of Justice Douglas M. Belch
    of the Superior Court of Justice, sitting with a jury, dated November 25, 2015,
    with reasons reported at 2015 ONSC 6799 and at 2015 ONSC 7373
,

and the
    costs judgment by the same judge dated December 23, 2015, with reasons reported
    at 2015 ONSC 7373.

MacFarland J.A
.:

[1]

These appeals arise from the judgment of Justice Douglas M. Belch of the
    Superior Court of Justice, dated November 25, 2015, sitting with a jury, and,
    if leave be granted, from the accompanying costs judgment dated December 23,
    2015. They were heard together with the appeal in
El-Khodr v. Lackie
, 2017
    ONCA 716 because these cases raise common issues regarding the regime in Part
    VI of the
Insurance Act
, R.S.O. 1990, c. I.8 for the treatment of statutory
    accident benefits (SABs) in the calculation of damages arising from motor
    vehicle accidents. They also raise a common issue regarding the applicable rate
    of prejudgment interest under the
Courts of Justice Act
, R.S.O. 1990,
    c. C.43.
The
reasons

for
    judgment in
this appeal are being
    released concurrently with the reasons for judgment in
El-Khodr
.

[2]

In the
Cobb
appeals, because separate appeals were instituted
    by the parties, I propose to refer to them as the plaintiffs and the
    defendant in order to avoid any confusion that might arise from referring to
    each party according to its role in each appeal. When I refer to the plaintiff
    in the singular, I refer to Wade Cobb, the primary victim of the accident.

[3]

At the outset of the hearing, the defendant moved to have this court
    hear its appeal even though it was not within the monetary jurisdiction of this
    court pursuant to s. 6(2) of the
Courts of Justice Act
. The plaintiffs
    consented to the motion. The court was satisfied on hearing the submissions of
    counsel that it has jurisdiction to hear both appeals.

A.

BACKGROUND

(1)

The Claims
    of Wade Cobb and His Family against Longs Estate

[4]

On July 8, 2008, the vehicles driven by Martin T. Long and the
    plaintiff, Wade Cobb, collided. Long was charged with operating a motor vehicle
    while impaired or over 80 (
Criminal Code
, R.S.C., 1985, c. C-46, s.
    253(1)), to which charge he pleaded guilty in August 2009. He was sentenced to
    a fine of $1,300 and a one-year driving prohibition. Mr. Long died before the
    trial of the civil action, so his estate became the defendant in this
    litigation.

[5]

In December 2009, the plaintiffs brought this action in negligence and
    gross negligence, claiming $2.35 million in compensatory damages and $3 million
    in punitive damages. The trial took place over the course of 19 days in the
    fall of 2015. The jury awarded $220,000 in compensatory damages. After
    deducting amounts pursuant to the
Insurance Act
for collateral
    benefits that Wade Cobb had received from his insurer and for the statutory deductible
    for general damages (i.e., damages for non-pecuniary losses, such as pain
    and suffering and loss of amenity), the trial judge calculated a final
    judgment amount of $34,000.

[6]

At trial, liability for the motor vehicle collision was not seriously in
    contention. However, the defendant refused to admit liability formally because
    the plaintiffs had refused to limit their monetary claims to the defendants
    liability insurance policy limit. Over the course of the 19-day trial, the
    plaintiffs called 28 witnesses, the defendant two.

[7]

The real issue dividing the parties was the quantum of damages to which
    the plaintiff, Wade Cobb, was entitled. The other two plaintiffs had relatively
    minor claims for compensation pursuant to Part V of the
Family Law Act
,
    R.S.O. 1990, c. F.3.

[8]

By the time of trial, Mr. Cobbs injuries would be described as soft
    tissue in nature, resulting in chronic pain, such that he claimed to be permanently
    disabled and unable to resume either his pre-accident employment in the
    contracting field or any other meaningful employment.

(2)

The Jurys
    Verdict

[9]

Before the jury, the plaintiffs sought damages in the following amounts:



General Damages                               :

$150,000



Past Lost Income                                :

$178,136



Future Loss of Income                        :

$528,000 to $910,000



Past Housekeeping Loss                              :

$21,000



Future Housekeeping Loss                 :

$82,280



Family Law Act Damages                   :

$45,000





$1,004,416 - $1,386,416



[10]

The jury awarded:



General Damages                               :

$50,000



Past Lost Income                                :

$50,000



Future Loss of Income                        :

$100,000



Past Housekeeping Loss                    :

$5,000



Future Housekeeping Loss                 :

$10,000



Family Law Act
Damages                   :

$5,000



Total:

$220,000



[11]

The trial judge rejected the plaintiffs request to put the question of
    punitive damages to the jury. The plaintiff alleged this was a proper case for
    that question to go to the jury because of Mr. Longs drinking and driving
    conviction arising from the accident and the fact that Mr. Long had an earlier
    conviction for a similar offence.

(3)

The Trial
    Judges Deductions from the Jurys Award

[12]

Following receipt of the jurys verdict, the defendant brought a motion
    to settle the judgment. The trial judges reasons on this motion are reported
    at 2015 ONSC 6799. Mr. Cobb had received collateral benefits from his SABs
    insurer in the following amounts:



Up to June 29, 2010:



$29,300                                     :

income replacement benefits



$9,150                                       :

housekeeping and home maintenance benefits (HKHM)



On June 29, 2010:





$152,000                                   :

apportioned as $130,000 in income replacement
          benefits, $20,000 in medical benefits and $2,000 in costs, as part of a
          global settlement.



[13]

From the jurys award for past and future income losses, which totalled
    $150,000, the trial judge deducted the sum of $159,300 that the plaintiffs had
    received before trial in SABs for income replacement benefits. This sum was
    comprised of $29,300 received before the settlement of June 29, 2010 and the
    $130,000 portion of that settlement apportioned to all past and future income
    replacement benefits. This deduction resulted in a net award of zero for the
    loss of past and future income.

[14]

The trial judge did not determine whether the amendment in s. 258.3(8.1)
    of the
Act
,
which came
    into force on January 1, 2015, and which reduced the default rate of
    prejudgment interest for non-pecuniary losses for bodily injury or death from five
    percent to the bank rate at the time the proceeding was commenced (here, .5
    percent), applied retrospectively. Instead, the trial judge exercised his discretion
    pursuant to s. 130 of the
Courts of Justice Act
and set the
    prejudgment interest rate at three percent.

[15]

The plaintiff had received $9,150 in HKHM benefits before trial from his
    SABs insurer. Accordingly, the trial judge reduced the jurys award of $5,000
    for past HKHM expenses to zero. However, the trial judge refused to apply the
    remaining $4,150 in HKHM benefits that the plaintiff had received before the
    trial to the amount that the jury had awarded for future housekeeping loss,
    maintaining that award at $10,000.

[16]

Effective August 1, 2015, the statutory deductible applicable to an
    award for non-pecuniary damages increased from $30,000 to $36,540 through an
    amendment to s. 5.1(1) of the regulation entitled
Court Proceedings for
    Automobile Accidents that Occur on or After November 1, 1996
, O. Reg.
    461/96.

[17]

The trial judge concluded that the change to the regulation was substantive,
    as opposed to procedural, and, accordingly, should not be applied
    retrospectively to this action. He applied a deductible of $30,000, leaving a
    net general damage award of $20,000.

[18]

The final judgment of $34,000 was made up as follows:



General Damages                               :

$20,000



Future Housekeeping Loss                 :

$10,000



Pre-Judgment Interest (3%)                :

$4,000



Total:

$34,000



(4)

The Trial
    Judges Decision on Costs of the Action

[19]

The final issue the trial judge determined was the costs of the action, where,
    despite the relatively small recovery, the trial judge awarded the plaintiff
    costs of the action on a partial indemnity scale in the sum of $409,098.48,
    allocated as follows:



Legal Fees                                          :

$250,000



HST                                           :

$32,500



Disbursements                                    :

$126,598.48



Total:

$409,098.48



[20]

In his reasons on costs, the trial judge addressed whether the
    amendment to s. 267.5(9) of the
Insurance Act
that came into force on
    August 1, 2015 should apply to this action. Until July 31, 2015, under s.
    267.5(9) and this courts decision in
Rider v. Dydyk
, 2007 ONCA 687, 87
    O.R (3d) 507, the court was not to consider the statutory deductible in
    determining entitlement to costs. Effective August 1, 2015, however, s.
    267.5(9) was amended so that entitlement to costs was to be determined with regard
    to the statutory deductible. The difference here was significant, because of a
    defence settlement offer made March 13, 2014.

[21]

In reasons for judgment dated December 23, 2015 and reported at 2015
    ONSC 7373, the trial judge determined that he would not give the
Insurance
    Act
amendments retroactive application. He added, however, that if he was
    wrong in that determination, he would exercise his discretion and order that each
    side bear its own costs.

B.

ISSUES ON APPEAL

[22]

The plaintiffs raise three grounds of appeal:

1.

Did the trial
    judge err by deducting, pursuant to s. 267.8(1) of the
Insurance Act
,
    the amounts allocated to income replacement benefits in the SABs settlement
    from the jury awards for past and future income loss?

2.

Did the trial
    judge err in refusing to put the question of punitive damages to the jury?

3.

Did the trial
    judge err in his determination of prejudgment interest?

[23]

The defendant also raises three grounds of appeal:

1.

Did the trial
    judge err by failing to deduct the full amount of the HKHM benefits received by
    the plaintiff before the trial from the damages awarded for the housekeeping
    loss?

2.

Did the trial
    judge err in applying the statutory deductible in force prior to August 1, 2015
    ($30,000) rather than the statutory deductible in force at the time of judgment
    ($36,540)?

3.

Did the trial
    judge err in his assessment of costs?

C.

PLAINTIFFS APPEAL

(1)

Issue One: Did the trial judge err by deducting the amounts allocated
    to income replacement benefits in the SABs settlement from the jury awards for
    past and future income loss under s. 267.8(1)?

(a)

Introduction

[24]

At trial, the jury awarded to the plaintiff $50,000 in damages for past
    loss of income and $100,000 in damages for future loss of income. The trial
    judge determined that the plaintiff had received $159,300 in respect of income
    replacement SABs before trial, treated the two awards for income loss as one
    award of $150,000 for the purpose of deducting SABs, and thereby reduced the
    damages for income loss to nil.

[25]

There is no dispute about the amounts paid by the plaintiffs SABs
    insurer to him prior to the trial. Up until June 29, 2010, the plaintiff had
    received $29,300 in income replacement benefits. On that day, he entered into a
    final settlement agreement with his SABs insurer whereby he finally settled all
    his claims for statutory accident benefits. According to the Settlement
    Disclosure Notice, which document the plaintiff, by his signature, acknowledged
    having received and read on June 29, 2010, the settlement sum of $152,000 was
    attributed as follows:

OFFER TO SETTLE INCOME REPLACEMENT BENEFITS

You have been offered $130,000 for all past and future income
    replacement benefits.

OFFER TO SETTLE MEDICAL BENEFITS

You have been offered $20,000 for all past and future medical
    benefits.

OFFER TO SETTLE ANY OTHER ITEMS

You have been offered $2,000 for other items.

[26]

The settlement was finalized on this basis and the amounts reflected in
    the Settlement Disclosure Notice were paid accordingly. The plaintiff was
    represented by counsel (not appellate counsel) at the time the settlement was
    negotiated and that counsel was alive to the deductibility aspects of the
    settlement.

[27]

The plaintiff argues that the defendant has the onus of proof  a strict
    onus  to establish how much of the settlement related to past lost income and
    how much related to future loss of income and whether any of the settlement
    monies may have related to a somewhat vague claim for punitive damages. He
    contends that this strict onus is not met and no amount of settlement monies recovered
    by him should be deducted from the jurys award.

[28]

Of course in this case, there is no issue raised about any future
    entitlement to SABs. Any such entitlement was finally settled by the June 29,
    2010 settlement.

[29]

The statutory provision that governs this issue is s. 267.8(1) of the
Insurance
    Act
. The relevant portion of that provisions text is as follows:

267.8
(1) In an action for loss or damage from bodily
    injury or death arising directly or indirectly from the use or operation of an
    automobile, the damages to which a plaintiff is entitled for income loss and
    loss of earning capacity shall be reduced by the following amounts:

1.

All payments in
    respect of the incident that the plaintiff has received or that were available
    before the trial of the action for statutory accident benefits in respect of
    the income loss and loss of earning capacity.

[30]

The issue for this court is what amount, if any, of the $130,000 that
    the SABs insurer paid in settlement of all past and future income replacement
    benefits is deductible from the amounts that the jury awarded for past loss
    income and for future loss of income.

[31]

The defendant says that the issue is a question of fact: did the
    defendant satisfy its onus of establishing that the $130,000 allocated in the
    settlement to past and future income replacement benefits constituted
    statutory accident benefits in respect of the income loss and loss of earning
    capacity received by the plaintiff before the trial under s. 267.8(1)?

[32]

The plaintiffs impugn the trial judges decision to deduct the full
    $130,000 from the jurys awards for past and future income loss on two grounds.
    First, they argue that the $130,000 in the settlement was not deductible from
    the jurys verdict because the defendant did not satisfy the applicable
    standard of proof. Second, the plaintiffs interpret this courts decision in
Bannon
    v. McNeely
(1998), 38 O.R. (3d) 659 to require separate treatment of
    damages and SABs for past income losses and of damages and SABs for future
    income losses for the purpose of deducting SABs from damages.

(b)

The allegation
    of compensation for bad faith

[33]

The thrust of the plaintiffs first argument is that the settlement with
    the SABs insurer is not deductible from the jurys verdict because the
    settlement may have included an unspecified amount settling a claim for
    damages for bad faith in addition to the plaintiffs SAB entitlements.

[34]

In support of their allegation that the settlement may have included
    compensation for a claim of bad faith, the plaintiffs rely on the language of
    the Release that the plaintiff signed as a condition of obtaining the
    settlement funds. The Release states that it covers not only the plaintiffs
    SAB entitlements but also ALL claims for damages including, but not limited
    to, aggravated, exemplary and punitive damages or damages for alleged bad faith
    arising as a consequence of the accident and/or the handling of any claims by
    or on behalf of [the SABs insurer].

[35]

I agree with the defendant that the attribution of the settlement funds
    to particular claims is a question of fact on which this court owes deference
    to the trial judge. In my view, the record fully supports the trial judges
    determination on this issue.

[36]

In the settlement negotiations, the SABs insurer left it up to
    plaintiffs counsel to determine the allocation of the settlement amounts. Had
    that lawyer wished to allocate the monies in any different way, she could have
    done so. The Settlement Disclosure Notice divided the settlement compensation
    of $152,000 into $130,000 for income replacement benefits, $20,000 for medical
    benefits and $2,000 for other items. Correspondence from the settlement
    negotiations indicates that, before executing the Release, the plaintiff had
    agreed to allocate $130,000 of the $152,000 settlement to income replacement
    benefits, $20,000 to medical benefits and $2,000 to the plaintiffs legal
    costs. There was no evidence in the record that the plaintiff had negotiated
    for compensation arising from any allegation of bad faith.

[37]

Furthermore, the reference in the Release to claims for aggravated,
    exemplary and punitive damages or damages for alleged bad faith is standard
    language in any form of release. Indeed, the paragraph goes on to explain that
    the Release covers such claims for damages whether these claims are past,
    present or future
and whether these claims are known or unknown at the
    present time
 (emphasis added). Therefore, there was no reviewable error in
    the trial judges determination that the Settlement Disclosure Notice
    accurately stated the allocation of the settlement.

(c)

Past
    income loss and future income loss

[38]

The plaintiff argues that the tort damage awards for past lost income
    (income lost from the date of the accident to the date of trial) and future
    loss of income (the projected income loss from the date of trial to a future
    retirement date) are separate heads of damage. Relying on this courts decision
    in
Bannon v. McNeely
(1998), 38
    O.R. (3d) 659 (C.A.)
he submits that an award can only be reduced
    by a corresponding statutory accident benefit, on a benefit-by-benefit basis
    under s. 267.8 of the
Insurance Act
. He says This reflects the
    concept that apples should be deducted from apples, and oranges from
    oranges.

[39]

As the argument goes, the jury awarded the plaintiff $50,000 for past
    lost income loss and $100,000 for future loss of income.

[40]

First, claims advanced in a tort action for both past and future income
    claims are required to be separately advanced. Pre-judgment interest is owed on
    past income claims but not on future loss claims. The onus on a plaintiff is
    different  a plaintiff who claims for pre-trial pecuniary loss must prove the
    amount of that loss on the balance of probabilities:
Sales v. Clarke
(1998), 165 D.L.R. (4th) 241 (B.C.C.A.), at paras. 9-16. In contrast, a claim
    for future (i.e., post-trial) pecuniary loss needs only be proved on the basis
    of a real and substantial possibility of impairment of future earnings and a
    jury instructed accordingly:
Kim v. Morier
, 2014 BCCA 63, 58 B.C.L.R.
    (5th) 225, at paras. 7-10;
Basandra
, at para. 24.

[41]

The claims are still claims for income loss. The
Insurance Act
does not differentiate between past and future losses  it simply refers to all
    
payments
that the plaintiff has receivedbefore the trial of the action
for statutory accident benefits in respect of the income loss and loss of
    earning capacity
 (emphasis added). The statutory text uses the terms
    income loss and loss of earning capacity together as the label for both a
    single head of damage and a single kind of SAB.

[42]

There can be little doubt on this record that the sum of $159,300 was
    received by this plaintiff before the trial for SABs in respect of income loss
    and that amount should be deducted from the totality of the award for past and
    future income loss.

[43]

In this courts decision in
Basandra v. Sforza
, 2016 ONCA 251,
    the court considered the deductibility of certain payments received by the
    plaintiff prior to trial including certain amounts for past and future medical
    rehabilitation and past and future attendant care.

[44]

In
Basandra
, the questions posed for the jury lumped together
    damages for medical/rehabilitation, attendant care and housekeeping. The trial
    judge could not judge how much of the lump sum award related to the different
    heads in order to make the required deductions for the SABs received by the
    plaintiff before the trial. At para 8 of the reasons this court noted:

The trial judge accepted the appellants evidence that he had
    received a total of $81,658.67 for medical rehabilitation benefits $58,271.76
    for attendant care benefits and $6,939.84 for housekeeping benefits. These
    amounts included a 2009 lump sum settlement that allocated $30,000 for past and
    future medical rehabilitation and $5,000 for past and future attendant care.
    The trial judge noted that the 2009 settlement did not set out the respective
    portions related to past and future costs.

[45]

The trial judge concluded that the jurys entire awards for both past
    and future care, medical/rehabilitation and housekeeping should be reduced to
    nil.

[46]

The single issue before the court was:

Did the trial judge err by reducing the jurys award for past
    and future attendant care, medical/rehabilitation and housekeeping costs from
    $105,000 to nil in the absence of clear evidence about the quantum of each
    collateral benefit.

This court concluded that the trial judge made no
    error, holding at para. 27, that s. 267.8(4) of the
Insurance Act
combines damages for past and future health care expenses into a single amount
    for the purpose of deducting SABs in respect of health care expenses.

[47]

This case is similar in that the $130,000 paid to settle past and future
    income loss did not distinguish or allocate a particular amount to either.

[48]

The legislation (s. 267.8(1)) does not distinguish between amounts that
    relate to past and to future income loss. It speaks only to amounts received
    prior to the trial for income loss. Whether those amounts relate to past or
    future claims is irrelevant for the purpose of deductibility. Obviously, any
    amounts received before trial that include a sum for future income loss will,
    in all likelihood, be received by a plaintiff in settlement of his claims for
    income loss. Such payments are still payments received before trial for SABs in
    respect of income loss and are properly deductible from a jury award for both
    past and future income losses.

[49]

The apples to apples concept relates to the type of benefit at issue. As
    Lauwers J.A. noted at para. 5 in
Basandra
:

[5] An award can only be reduced by a corresponding statutory
    accident benefit, on a benefit-by-benefit basis, under s. 267.8 of the
Insurance
    Act
. This reflects the concept that apples should be deducted from
    apples, and oranges from oranges: see
Bannon v. McNeely
, at paras.
    49, 74;
Gilbert v. South
, 2015 ONCA 712, 127 O.R. (3d) 526, at para.
    44. For example, an award for housekeeping can be reduced by a housekeeping
    benefit, but not by a medical rehabilitation benefit.

[50]

The plaintiffs alternatively submitted that before any deduction can be
    made from the award for future loss of income, there must be an accounting
    for the five years between the time of the SABs settlement and the trial date.
    The essence of the argument is that some of what was a future loss at the
    time of the settlement will have become a past loss by the time of trial. For
    reasons already given, I do not accept this argument. First, as discussed
    above, the language of the legislation does not distinguish between awards for
    past and future losses and secondly, at para 27 of the reasons in
Basandra
,
    this court dealt with this argument stating:

Under s. 267.8(4) of the
Insurance Act
, the total
    amount of any statutory accidents benefits settlement for past losses or for
    future expenses is to be combined for the purpose of the reducing the jurys
    awards in respect of those benefits. There was accordingly no need for the
    trial judge to consider separately the effect of the 5-6 year period during
    which one might fairly say there were future amounts on the settlement, but
    past amounts as at the trial.

[51]

The language of s. 267.8(1) is identical to that of s. 267.8(4) except
    for the type of benefit it references, income loss and loss of earning capacity
    as opposed to health care.

[52]

Since the purpose of the statutory deduction procedure is to prevent
    double recovery for a single loss, there is no reason in principle to
    distinguish between pre-trial and post-trial income loss and loss of income
    capacity when deducting SABs from damages.

[53]

The law of damages distinguishes between pre-trial pecuniary loss and
    post-trial pecuniary loss primarily for two reasons, calculation of prejudgment
    interest and proof of damage:
Basandra
, at para. 24.

[54]

Additionally, as is more fully explained in the reasons for judgment in
    the
El-Khodr
case, I have serious reservations as to whether the
    strict matching requirement articulated in
Bannon v. McNeely
(1998),
    38 O.R. (3d) 659 (C.A.)
and
Gilbert
    v. South
, 2015 ONCA 712, 127 O.R. (3d) 526, the cases referenced by
    Lauwers J.A. in
Basandra
, remains good law in this province for two
    reasons. First, the legislation has changed significantly since
Bannon
was decided. Secondly, the Supreme Court of Canada in its decision in
Gurniak
    v. Nordquist
, 2003 SCC 59, [2003] 2 S.C.R. 652, if it did
    not specifically overrule
Bannon
, very clearly
    stated that
the case
upon which the matching principle in
Bannon
is based
was wrongly
    decided.
In my view,
Gurniak
puts in considerable doubt any
    qualitative or temporal matching requirement that is not mandated by the
    current legislation.

[55]

For these reasons, s. 267.8(1) of the
Insurance Act
requires
    deduction of all income replacement SABs, and all payments in settlement of
    claims for income replacement SABs, that the plaintiff receives before trial
    from the total of all damages awarded at trial for past and future income loss
    arising from the same incident.

[56]

Accordingly, I would uphold the trial judges decision to reduce the
    jury award for past loss income loss and future loss of income to zero.

(2)

Issue Two: Did the trial judge err in refusing to put the question of
    punitive damages to the jury?

[57]

The plaintiffs submit that the trial judge erred in refusing to allow
    the plaintiffs to seek an award of punitive damages from the jury.

[58]

The argument and the basis for the claim relate to the fact that the
    defendant was convicted of impaired driving on his plea of guilty in relation
    to this motor vehicle accident.

[59]

The plaintiffs submit that this courts decision in
McIntyre v.
    Grigg
(2006), 83 O.R. (3d) 161, stands for the proposition that a jury
    should be permitted to consider punitive damages in any civil action for
    negligence arising from impaired driving.

[60]

That is, with respect, not my reading of the
McIntyre
case. As
    the defendant points out in his factum, the majority in
McIntyre
held,
    at para. 76, that a factor of significant importance in assessing whether it
    would be appropriate to award punitive damages is whether punishment has
    already been imposed in a separate proceeding for the same misconduct.

[61]

In the same paragraph, the court quoted the following statement from
    Binnie J.s majority reasons in
Whiten v. Pilot Insurance Co.
, 2002
    SCC 18, [2002] 1 S.C.R. 595, at para. 123: The key point is that punitive
    damages are awarded if, but only if all other penalties have been taken into
    account and found to be inadequate to accomplish the objectives of retribution,
    deterrence, and denunciation.

[62]

In
McIntyre
,
this court elaborated on how this principle applies to a tort action when the
    defendant already has received a criminal conviction for the same wrong:

[79] While the driver Grigg pleaded guilty to, and received a
    fine for, careless driving, the evidence in the civil trial established that he
    was significantly impaired and that his conduct should normally warrant a
    serious punishment. Where a wrongdoer has already been punished for an offence
    and the same conduct is in question at a civil trial, punitive damages
    generally will not serve a rational purpose as the sentence imposed in the
    criminal or regulatory environment will have already met the necessary
    objectives of retribution, deterrence and denunciation. In our view, there are
    sound policy reasons for generally not attempting to re-try those proceedings
    in a civil action. As this court held in
Fleury v. Fleury
,
supra
,
    at para. 11:

Where tortious acts have already been sanctioned by the
    imposition of a criminal sentence, it is inappropriate to award punitive
    damages in a civil lawsuit. To do so is to punish twice for the same offence.
    Where, however, the civil proceedings establish thatthe sentence does not
    fully sanction the tortfeasors behaviour... punitive damages may be awarded.

[80] In our view, a court in a civil proceeding should
    generally demonstrate deference to the decision of the other court. Otherwise,
    the review of the appropriateness of a penalty administered in a criminal
    court, for example, could be viewed as a collateral attack on that decision. In
    our opinion, the disproportionality test enunciated by Binnie J. in
Whiten
in relation to the wrongful conduct and the penalty imposed is one that should
    be approached with considerable caution.

[63]

The majority concluded that, on the particular facts in
McIntyre
,
that case was one of the rare
    instances where the question should go to the jury. The facts in
McIntyre
entirely drove the disposition in that case. Ms. McIntyre had been walking
    along the curb of a street in Hamilton with a group of friends when Griggs
    vehicle struck her. Griggs blood alcohol level at the time was two to three
    times over the legal limit. Initially he was charged with over 80; later,
    counts of impaired driving causing bodily harm and dangerous driving causing
    bodily harm were added. Ultimately, the Crown attorney proceeded only with a
    charge of careless driving and the other charges were withdrawn. This decision
    was based on the failure to inform Grigg of his right to counsel before the
    breathalyzer was administered. The Crown gave evidence at the trial that, had
    Grigg been convicted as charged, he would, in all likelihood, have received a
    custodial sentence. As it was, he pleaded guilty to careless driving and
    received only a fine of $500. There was no license suspension.

[64]

In
McIntyre
, unlike in this case, the fact of the defendants
    impairment at the time of the accident appeared to have gone unpunished in the
    criminal proceedings. The defendant in
McIntyre
had pleaded guilty only
    to
careless
driving, whereas Mr. Long pleaded guilty to
impaired
driving.

[65]

Here, there was no evidence to suggest that the defendants criminal
    sentence, consisting of a fine of $1,300 and a one-year driving prohibition,
    was insufficient to meet the objectives of retribution, deterrence and denunciation.
    I note that, in support of the common-law principles that I have discussed, in
    Ontario, s. 4(4) of the
Victims Bill of Rights
, 1995
, S.O.
    1995, c. 6 requires a trial judge in a civil case to take the sentence, if
    any, imposed on a convicted person into consideration before ordering that
    person to pay punitive damages to a victim. In my view, the trial judges
    decision not to put the question of punitive damages to the jury was reasonable
    in the circumstances, and his decision is entitled to deference in this court:
B.
    (M.) v. 2014052 Ontario Ltd.
, 2012 ONCA 135, 109 O.R. (3d) 351,

at
    paras. 51, 92. Therefore, I would not give effect to this ground of appeal.

(3)

Issue Three: Did the trial judge err in his determination of prejudgment
    interest?

(a)

Introduction

[66]

The last of the plaintiffs grounds of appeal concerns the rate of
    prejudgment interest applicable to the plaintiffs damages for non-pecuniary
    loss, in this context also called general damages. The disputed statutory
    provision is s. 258.3(8.1) of the
Insurance Act
, which came into force
    on January 1, 2015. The provision originated in Schedule 3, s. 12 of the
Fighting
    Fraud and Reducing Automobile Insurance Rates Act
, 2014, S.O. 2014, c. 9,
    also known as Bill 15. The text of s. 258.3(8.1) is as follows:

(8.1) 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 kind of action to which subsection (8) refers is
    an action for loss or damage from bodily injury or death arising directly or
    indirectly from the use or operation of an automobile.

[67]

However, neither Bill 15 nor s. 258.3(8.1) specified whether this
    amendment to the
Insurance Act

would apply retrospectively to
    actions commenced before January 1, 2015 but tried thereafter. Whereas some of
    the provisions in the
Insurance Act

and some of the SABs
    regulations include a transition rule (see, for example, s. 267.5(8.1.1) and s.
    2 of Ont. Reg. 34/10), this amendment to the
Insurance Act

is
    entirely silent on whether it applies only to proceedings concerning accidents
    that occurred on or after the provisions enactment.

[68]

To understand the effect of s. 258.3(8.1) to accident cases to which it
    applies, one must read it in the context of the statutory regime for
    prejudgment interest. One begins with s. 128(1) of the
Courts of Justice
    Act
, which
creates an entitlement
    to prejudgment interest and refers to a default rate:

128
(1) A person who is entitled to an order for the
    payment of money is entitled to claim and have included in the order an award
    of interest thereon at the prejudgment interest rate, calculated from the date
    the cause of action arose to the date of the order.

[69]

For the purposes of s. 128, s. 127(1) defines prejudgment interest
    rate as the bank rate at the end of the first day of the last month of the
    quarter preceding the quarter in which the proceeding was commenced. However,
    s. 128(2) creates an exception from this default rate of prejudgment interest
    for damages for non-pecuniary loss arising from personal injuries:

(2) Despite 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 made under clause 66 (2) (w).

[70]

The relevant rule of court to which s. 128(2) refers is r. 53.10 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, which provides:

53
.10 The prejudgment interest rate on damages for
    non-pecuniary loss in an action for personal injury is 5 per cent per year.

[71]

Therefore, s. 128 of the
Courts of Justice Act

contemplates
    two default rates of prejudgment interest: one for damages for non-pecuniary
    loss in personal injury actions, and one, called the prejudgment interest
    rate, for all other money awards for which s. 128 makes prejudgment interest
    available. The plaintiffs commenced their action on December 8, 2009, so the
    applicable prejudgment interest rate in s. 128(1) is .5%.

[72]

I have referred to the regime of prejudgment interest rates in ss. 128
    (1) and (2) as one of default rates because s. 130 of the
Courts of
    Justice Act
gives the court discretion to reduce or increase the
    prescribed rate of interest or to disallow interest otherwise payable under s.
    128:

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,


(a) changes
    in market interest rates;

(b) the
    circumstances of the case;

(c) the fact
    that an advance payment was made;

(d) the
    circumstances of medical disclosure by the plaintiff;

(e) the amount
    claimed and the amount recovered in the proceeding;

(f) the conduct
    of any party that tended to shorten or to lengthen unnecessarily the duration
    of the proceeding; and

(g) any other relevant consideration.

[73]

Therefore, the effect of s. 258.3(8.1) of the
Insurance Act
is
    that, in an action for damages arising out of a motor vehicle accident, the prejudgment
    interest rate on non-pecuniary damages will now be the rate provided for in ss.
    127 and 128(1) of the
Courts of Justice Act
,
subject to the overriding discretion of the court in
    s. 130
of the
same statute to increase
    or reduce the rate, to change the interest period, or to disallow interest
    altogether
.

[74]

The plaintiffs argue that the 2015 amendment, which reduces the rate of
    prejudgment interest, should not apply retrospectively to a collision that
    occurred in 2008. They accept that procedural legislation is presumed to have immediate
    application, but rely on this courts decision in
Somers v. Fournier
(2002), 60 O.R. (3d) 225 (C.A.), where this court held
    that entitlement to prejudgment interest is a matter of substantive law. They
    also rely on the trial decision in
El-Khodr v. Lackie,
where the trial judge relied on
Somers
, but also
    relied on
Angus v. Sun Alliance Insurance Co.
, [1988] 2 S.C.R. 256 for the argument that this
    prejudgment interest amendment should not apply retrospectively because this
    would provide a windfall to insurance companies that previously had charged
    premiums on the assumption of a 5% prejudgment interest rate for non-pecuniary
    damages in personal injury cases.

[75]

The defence submits that r. 53.10 is a procedural rule and hence,
    because the new s. 258.3(8.1) amended a procedural rule, the change in the
    legislation is procedural in nature. The rate of interest or means by which
    entitlement to prejudgment interest is quantified is procedural. Further, the defence
    submits that s. 52(4) of the
Legislation Act, 2006
, S.O. 2006, c. 21,
    Sch. F codifies the common-law presumption that procedural legislation applies
    immediately, not only to future proceedings but also to ongoing or pending
    proceedings that relate to events that took place prior to such legislations
    enactment.

[76]

In this case, the trial judge did not make a determination one way or
    the other as to whether the amendment applied retrospectively. Instead, he
    chose what he described as a third choice and exercised the discretion
    available to him under s. 130(1)(b) of the
Courts of Justice Act
.
    Having taken into account the factors set out in s. 130(2) and having
    considered the overall circumstances of the case, he fixed the interest rate
    for non-pecuniary damages at three percent.

[77]

I would uphold the trial judges reasons with respect to his third
    choice. I see no basis to interfere with the exercise of that discretion in
    view of the fact that it benefits the plaintiff and the defendant has advised
    the court that it is content with that rate of interest. Therefore, the
    disposition of this appeal does not require me to decide on the temporal
    application of the amendment to the prejudgment interest rate. However, the
    disposition of the companion case,
El-Khodr v. Lackie
, requires me to
    resolve this issue of temporal application. I prefer to address the issue in
    detail in these reasons because other issues in the
Cobb

appeals
    also require consideration of the temporal application question.

[78]

For the reasons expressed below, I conclude that the amendment in the
Insurance
    Act
to the prejudgment interest rate was intended to have retrospective
    effect and it applies to all actions that are tried after its commencement.

(b)

Legislative
    intention and temporal application

[79]

The determination of the prejudgment interest amendments temporal
    application requires consideration of several rebuttable presumptions that
    apply in the interpretation of legislation. Before I begin to discuss these
    principles, I emphasize that the purpose of presumptions concerning the
    temporal application of legislation is to assist, along with other principles
    of statutory interpretation, in the determination of
legislative intent
:
Dikranian v. Quebec (Attorney General)
, 2005 SCC 73, [2005] 3 S.C.R.
    530, at para. 36.

[80]

The common law generally presumes that legislation does not have
    retrospective application:
Gustavson Drilling
(1964) Ltd. v. M.N.R.
,
    [1977] 1 S.C.R. 271, at p. 279. However, as
Dikranian
emphasizes, this
    presumption applies within a contextual analysis of legislative intent, and
    contextual analysis can rebut the presumption.

[81]

Two additional presumptions are also relevant to the analysis: (1) the
    presumption against legislative interference with vested rights and (2) the
    presumption that procedural legislation applies immediately.

[82]

Since these presumptions also are relevant to the issues in this appeal
    concerning the statutory deductible and costs, I will outline each presumption before
    applying them to the prejudgment interest issue.

[83]

First, as a matter of statutory interpretation, there is a presumption that
    the legislature does not intend to interfere with vested rights:
Dikranian
,
    at paras. 32-33.
Dikranian
, at paras. 37-40, endorsed Prof. Côtés
    test for establishing a vested right: (1) the individuals legal situation must
    be tangible and concrete rather than general and abstract (i.e.: the
    individual must point to a specific right); and (2) the legal situation must
    have been sufficiently constituted at the time of the new legislations
    commencement. In other words, by the time of the legislations commencement, the
    right must have crystallized and become inevitable and certain:
1392290
    Ontario Ltd. v. Ajax (Town),
2010 ONCA 37, 257 O.A.C. 311, at paras.
    37-38. The characterization of the right at issue is important to the success
    of the argument that the right had vested by commencement:
1392290
    Ontario Ltd
.
, at para. 39.

[84]

Second, new legislation that affects substantive rights is presumed to
    have a purely prospective effect unless a clear legislative intent that it is
    to apply retrospectively is evident. However, procedural legislation designed
    to govern only the manner in which rights are asserted or enforced applies
    immediately to both pending and future cases because such legislation does not
    affect the substance of the relevant rights:
R. v. Dineley
, 2012 SCC
    58, [2012] 3 S.C.R. 272, at para 10. In
Dineley
, the Supreme Court
    emphasized that this presumption of immediate application
does not
apply
    to procedural legislation if that legislation affects substantive rights.
    Therefore, the key task lies not in labelling the provisions procedural or
    substantive, but in discerning whether they affect substantive rights:
Dineley
,
    at para. 11.

(c)

The
Courts of Justice Act
does not create a vested right to a particular
    rate of prejudgment interest

[85]

In my view, the plaintiff has not demonstrated that he has a crystallized
    or certain right to a particular rate of prejudgment interest.

[86]

Interest rates fluctuate over time and it only makes sense that the
    interest rates set by the court should reflect these changes as well. Prejudgment
    interest is meant to compensate for the loss of use of moneys worth from the
    date when the injury is sustained to the time of judgment. 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 result of the injury  but neither
    too much, nor too little. The provisions of the
Courts of Justice Act

concerning prejudgment interest do this by preserving the courts
    discretion not to apply the default rate.

[87]

Although s. 128(1) says that a person entitled to an order for a
    payment of money also is entitled to prejudgment interest, and s. 128(2) contemplates
    special rates for interest on damages for non-pecuniary loss in personal injury
    actions, s. 130 provides the court with discretion to disallow prejudgment
    interest, to vary the rate otherwise applicable, or to vary the period for
    calculation of interest otherwise applicable.

[88]

Read together, these provisions in the
Courts of Justice Act
recognize
    that rates of prejudgment interest require variation to keep pace with economic
    realities and to ensure that plaintiffs are not overcompensated nor
    undercompensated for the lost value of their damage award over time.

[89]

In
R. v. Puskas
, [1998] 1 S.C.R. 1207, the Supreme Court
    interpreted s. 43(c) of the federal
Interpretation Act
, R.S.C. 1985,
    c. I-21, which codifies the common-law vested rights presumption, albeit
    through use of the synonyms acquired, accrued, accruing or incurred. The
    court, at para. 14, held that a right cannot accrue, be acquired, or be accruing
    until all conditions precedent to the exercise of the right have been
    fulfilled. This holding relies on a definition of a vested right in which a
    right does not vest until the purported holder of the right can claim on it
    without meeting any other substantive conditions: Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th ed. (Markham, Ont.: LexisNexis
    Canada, 2014),

at paras. 25.145-25.146.

[90]

In this case, the plaintiffs right to tort damages vested at the moment
    of the accident:
Dikranian
, at para. 40. However, the rate of
    prejudgment interest on those damages, as distinguished from the entitlement to
    prejudgment interest, always was subject to judicial discretion which could
    only be exercised at the time the damage award was made. Therefore, aside from
    the fact that there is no
right
to a particular rate of interest, there
    can be no expectation on the part of a litigant that he or she is entitled to
    prejudgment interest at any particular rate until the trial judge determines
    the rate. Any right is not crystallized or certain until that determination
    is made.

(d)

The presumption of immediate application of procedural legislation
    applies

[91]

As I indicate above, the defendant, and the appellants in the
El-Khodr
appeal, rely upon the presumption that procedural legislation applies
    immediately and upon this courts decision in
Somers
for the
    proposition that while questions of entitlement to prejudgment interest
    involve substantive rights, any determination as to the applicable rate of interest
    involves the quantification or measurement of damages, which is a question of
    procedure.

[92]

In
Somers
,
the court was concerned with the choice of law to be applied in an
    international negligence action commenced in Ontario arising from a two-car
    motor vehicle collision that occurred in New York State. One of the issues in that
    case was whether entitlement to prejudgment interest was procedural or
    substantive in nature.
If it was substantive, the law
    of New York would apply, with the result that no prejudgment interest would be
    awarded. There was no issue in that case with respect to any particular rate of
    interest.

[93]

This reliance on
Somers
assumes that the categories of
    substance and procedure in a conflicts of laws context are closely
    analogous to the categories of substantive and procedural legislation in determining
    the temporal application of a law. One must exercise caution in making this
    analogy and the cases should not be automatically imported from one context to
    the other.
[1]
As I have indicated, the
Dineley
decision indicates that the nature of
    a procedural provision in the transitional law context is narrow; it deals with
    the methods by which facts are proven and legal consequences are established. Their
    operation is generally dependent on the existence of litigation. In my view, it
    would be an error to rely upon
Somers
for the proposition that the rate
    of interest is procedural in nature for purposes of determining the temporal
    application of s. 258.3(8.1) of the
Insurance Act
.

[94]

In my view, it is not necessary to consider the application of the
    presumptions or to decide whether s. 258.3(8.1) of the
Insurance Act
,
which only deals with the
rate
of prejudgment interest and not with the
entitlement
to prejudgment interest, is substantive in nature. Even if the rate of
    prejudgment interest constitutes a substantive right, the fact that a
    particular presumption could apply does not necessitate a conclusion that the
    amendment does not apply in this case. Common-law presumptions on temporal
    application of legislation are simply aids in the identification of legislative
    intent. In my view, a contextual analysis of the legislation demonstrates that
    the legislature intended s. 258.3(8.1) to apply to causes of action that had
    already arisen but not yet been tried.

[95]

The decision of this court in
Sidhu v. State Farm Mutual Automobile
    Insurance Co.
, 2014 ONCA 920,

43 C.C.L.I. (5th) 22, is of no
    assistance to the plaintiffs because in this case, the court was determining
    whether interest owed by the insurer on overdue payments was payable at a rate
    of two percent as required by the 1996 SABs schedule
[2]
or at a rate of one percent as required by the 2010 SABs schedule.
[3]
In holding that the insurer was required to pay the two percent rate, the court
    noted that s. 2(2) of the 2010 schedule provides that interest shall be paid
    under that regulation in the amount determined under the previous schedule.

[96]

As stated, s. 258.3(8.1), and the statute that introduced it, contain
    no transition language that clearly indicates the temporal application of this
    amendment. This is in contrast to the legislative evolution of the prejudgment
    interest provisions. When making significant changes to the prejudgment
    interest regime in the
Judicature Act
and the
Courts of Justice
    Act
over the last forty years, the legislature has clearly indicated that
    the changes were to have only prospective effect.
[4]


[97]

Prior to the enactment of the

Courts of Justice Act
in
    1984, prejudgment interest was addressed in the
Judicature Act
. When the
    interest provisions of the
Judicature Act
were amended in 1977 in S.O.
    1977, c. 51, to introduce the concepts of awarding prejudgment interest at the
    prime rate and of the trial judges discretion to depart from that prime rate,
    the amending legislation specifically provided that it had a prospective effect:

3
(6)(2) This section
    applies to the payment of money under judgments delivered
after this section
    comes into force
, but no interest shall be awarded under this section for a
    period before this section comes into force.

[Emphasis added]

[98]

When the 1980 consolidation of the
Judicature Act
was published
    in R.S.O. 1980, c. 223, the specific language of s. 36(7) continued the
    prospective application of the 1977 amendment:

36
(7). This section
    applies to the payment of money under judgments delivered
on or after the 25
th
day of November, 1977
, but no interest shall be awarded under this section
    for a period before that date.

[Emphasis added]

[99]

When the
Courts of Justice Act
was adopted in S.O. 1984, c. 11,
    s. 138(4), expressly stated that the prejudgment interest provisions applied
    only prospectively:

138 (4)
Where a proceeding is
    commenced before this section comes into force, this section does not apply
and section 36 of the
Judicature Act
, being chapter 223 of the Revised
    States of Ontario, 1980, continues to apply, notwithstanding section 187.

[Emphasis added]

[100]

An amendment to
    the
Courts of Justice Act
in 1989, in S.O. 1989, c. 67, introduced s.
    138(1)(a), the provision that is now s. 128(2). It then read, Despite
    subsection (1), the rate of [prejudgment] interest on damages for non-pecuniary
    loss in an action for personal injury shall be the discount rate determined by
    the rules of court. Subsection 6(2) of the 1989 Act provided that If the order
    includes an amount for past pecuniary loss, the interest calculated under
    subsection (1) shall be calculated on the total past pecuniary loss at the end
    of each six-month period and at the date of the order. The legislation clearly
    indicated that these amendments applied only prospectively:

8
(1) The amendments to the
Courts of Justice Act, 1984
, as enacted by this Act, except for the
    amendments enacted by section 1, section 4 and subsection 6(2), apply to causes
    of action
arising after the 23
rd
day of October, 1989
.

(2) The amendments to the
Courts
    of Justice Act, 1984
, as enacted by section 4 and subsection 6(2) of this
    Act, apply to,

(a)
    actions commenced but not
settled or adjudicated upon before this Act comes
    into force
; and

(b) causes
    of action
arising after this Act comes into force
.

[Emphasis added]

[101]

Because s.
    258.3(8.1) of the
Insurance Act
affects the application of the
    prejudgment interest regime prescribed by the
Courts of Justice Act
, the
    legislative history relating to the prejudgment interest provisions of the
Courts
    of Justice Act
is highly relevant. The absence of similar temporal language
    in s. 258.3(8.1) supports the view that the legislature intended for this
    change to the prejudgment interest regime to have retrospective effect so as to
    apply to pre-existing causes of action.

[102]

I take further
    support for the view that this amendment was intended to have retrospective
    effect from a consideration of how such an interpretation would serve the
    purposes that the legislature must have intended to achieve in Bill 15. During
    the introduction of the Bill at First Reading,
[5]
the policy underlying the Bill and the rationale for the prejudgment interest
    amendment were discussed. The expressed goal was to bring down the cost of
    claims to achieve a reduction in automobile insurance rates within a two-year
    window and the adjustment of the prejudgment interest rate was one part of that
    strategy:

In
    August of last year, we announced our cost and rate reduction strategy, which
    is targeting an industry-wide average of a 15% reduction in authorized auto
    insurance rates within two years. The measures proposed in this bill would move
    forward on our strategy by helping to reduce costs in the system and continuing
    to fight fraud. Auto insurance rates are directly linked to claim costs.
    Reducing cost and uncertainty in the system would help reduce rates for Ontario
    drivers.

...

Lastly, the bill would
    implement measures to reform the prejudgement interest rates for general
    damages and again reduce costs by protecting and expediting matters more
    quickly for claimants. This rate, actually, hasnt been updated since 1990.
    Linking the rate to current market conditions would help reduce the cost to
    bodily injury claims and auto insurance systems while still ensuring fairness
    for consumers.

[103]

Given the delays
    that are inherent in litigation, to achieve the cost reduction goal as quickly
    as possible and within the two-year window promised by the government would
    require the amendments introduced by Bill 15 to apply to cases already in the
    system. I note that such an interpretation does not undermine the legitimate
    interests of tort plaintiffs. Any perceived unfairness to litigants who commenced
    their actions before the effective date of the amendment can be ameliorated
    through the exercising of a trial judges discretion under s. 130 of the
Courts
    of Justice Act
to award prejudgment interest at a rate other than the
    default rate.

[104]

For these
    reasons, I conclude that the prejudgment interest amendment to the
Insurance
    Act
applies to this action notwithstanding that the accident occurred and
    the cause of action arose before it was enacted, with the result that the
    applicable default prejudgment interest rate on the non-pecuniary damages is .5
    percent and not five percent.

[105]

However, the
    defendant accepts that the trial judge was entitled to exercise his discretion under
    s. 130 of the
Courts of Justice Act
as he did; the defendant is content
    with the three percent interest rate.

[106]

Therefore, I
    would dismiss this ground of appeal.

D.

THE DEFENDANTS APPEAL

(1)

Issue One: Did the trial judge err by failing to deduct the full amount
    of the HKHM benefits received by the plaintiff before the trial from the
    damages awarded for the housekeeping loss?

[107]

The jury awarded
    the plaintiff $5,000 for past housekeeping loss and $10,000 for future
    housekeeping loss, for a total amount of $15,000 for all past and future HKHM
    needs. Prior to the trial, the plaintiff had received the sum of $9,150 from
    his SABs insurer for HKHM benefits. The trial judge concluded, The defence
    cannot deduct past benefits from future benefits; he accepted as applicable
    the plaintiffs interpretation of the apples to apples matching principle
    from
Bannon
, which this court decided almost 20 years ago. Therefore,
    he treated the HKHM benefits that the plaintiff had received before trial as
    past benefits and credited them against the jurys $5,000 award for past
    housekeeping loss, reducing that award to zero. However, he refused to apply
    the remaining $4150 in SABs to the jurys $10,000 award for future housekeeping
    loss.

[108]

For the same reasons as set out earlier in respect
    to the plaintiffs income loss, in light of this courts decision in
Basandra
,
I see no reason to distinguish
    between the past and future awards  the distinction is a procedural one to
    meet the requirements of the law. The head of damage is to compensate for loss
    of the ability to carry out HKHM both in the past and the future. The language
    of the legislation requires a reduction from the damages awarded  all payments
    received before the trial for SABs in respect of pecuniary loss.

[109]

I would allow appeal
    and, set aside the trial judges ruling and reduce the plaintiffs damages
    award for future housekeeping by a further $4,150.

(2)

Issue Two: Did the trial judge err in applying the statutory deductible
    in force prior to August 1, 2015 ($30,000) rather than the statutory deductible
    in force at the time of judgment ($36,540)?

(a)

Introduction

[110]

The answer to
    this question turns on the same principles for the interpretation of
    legislation that I discuss above in relation to the prejudgment interest rate
    amendment in s. 258.3(8.1) of the
Insurance Act
.

[111]

Subsection
    267.5(7)3(i) of the
Insurance Act

requires the deduction of a
    prescribed statutory deductible from an award of damages for non-pecuniary loss
    in an action for loss or damage from bodily injury or death arising directly
    or indirectly from the use or operation of an automobile :

3.
Subject to subsections (8), (8.1) and (8.1.1), the
    amount of damages for non-pecuniary loss to be awarded against the protected
    defendant shall be determined by reducing the amount
[of damages for non-pecuniary loss for which the
    defendant would be liable without regard to Part VI of the
Insurance Act
]
by,

(i)
in
the case of damages for non-pecuniary loss other than
    damages for non-pecuniary loss under clause 61(2)(e) of the
Family Law Act
,
    the greater of

A.       $15,000,
    and

B.
The
    amount prescribed by the regulations

[Emphasis
    added
.]

[112]

In this case,
    the issue for interpretation is whether the amount prescribed in an amendment
    that came into force on August 1, 2015 to a regulation (the 
Court
    Proceedings Regulation
) can apply to an accident that occurred in 2008. The
    relevant provision of the
Court Proceedings

Regulation in force
    immediately before August 1, 2015 required the deduction of $30,000:

5.1
    (1)
The amount of $30,000 is prescribed
for the purpose of
    sub-subparagraph 3 i B of subsection 267.5 (7) of the Act
in respect of
    incidents that occur on or after October 1, 2003
.
[6]
[Emphasis added
.]

[113]

Effective August
    1, 2015, s. 5.1 of the
Court Proceedings

Regulation was amended
    and would require the deduction of $36,540 if applied to this case:

5.1 (1) For the purpose of
    sub-subparagraph 3 i B of subsection 267.5 (7) of the Act, the prescribed
    amount is the amount determined in accordance with the following rules:

1.
    Until December 31, 2015, the prescribed amount is $36,540.

2.
    On January 1, 2016, the prescribed amount set out in paragraph 1 shall be
    revised by adjusting the amount by the indexation percentage published under
    subsection 268.1 (1) of the Act for that year.

3. On January 1 in every
    year after 2016, the prescribed amount that applied for the previous year shall
    be revised by adjusting the amount by the indexation percentage published under
    subsection 268.1 (1) of the Act for the year.
[7]


[114]

Like the amendment
    to the
Insurance Act
respecting prejudgment interest, the 2015 amendment
    to s. 5.1 of the
Court Proceedings

Regulation contains no
    transition provision that clearly indicates its temporal application. In
    contrast, the version of s. 5.1 in force before August 1, 2015 specifically
    stated that it was applicable to accidents that occurred
on or after
October 1, 2003. I also note that s. 267.5(8.1.1) of the
Insurance Act
specifically provides that the statutory deductible does not apply to damages
    awarded for non-pecuniary loss awarded in respect of a person who dies as a
    direct or indirect result of an incident
that occurs after August 31, 2010

    (emphasis added). It is noteworthy that within that part of the statute that
    deals with the statutory deductible, the language distinguishes between those
    sections that are specifically intended to have only a prospective application
    and those that are not. The fact that there is no similar temporal language in the
    current version of s. 5.1 of the regulation provides some support for the
    argument that the change should apply to accidents occurring before its
    promulgation.

[115]

That conclusion
    is supported by two additional considerations. First, in my view, temporal language
    is absent in s. 5.1 of the regulation because the provincial executive would
    have understood that the rolling incorporation rule mandated by s. 59 of the
Legislation
    Act
, 2006
would otherwise apply.

[116]

Second, the language
    of the statute and of the 2015 amendment to s. 5.1 of the regulation clarifies
    that the legislature intended for the 2015 amendment to have retrospective
    effect to accidents that occurred before the promulgation of that amendment to
    the regulation.

(b)

Section 59 of
    the Legislation Act, 2006

[117]

Section 59 deals
    with the question of whether the reference to a regulation in a statute is
    meant to be interpreted in a static fashion, meaning that it is interpreted as
    it exists at a particular time:

59
(1) A reference in an Act or regulation to a
    provision of another Act or regulation is a reference to the provision,

(a) as amended, re-enacted or remade; or

(b) as changed under Part V (Change Powers).

(2) Subsection (1) applies whether the provision is amended,
    re-enacted, remade or changed under Part V before or after the commencement of
    the provision containing the reference.


(3) If the provision referred to is repealed or revoked,
    without being replaced,

(a) the repealed or revoked
    provision continues to have effect, but only to the extent that is necessary to
    give effect to the Act or regulation that contains the reference; and

(b) the reference is to the
    provision as it read immediately before the repeal or revocation.

[118]

Thus, absent persuasive
    evidence of a legislative intention to apply the version of a regulation in
    force at a specific date, s. 59 ensures application of the current version of a
    regulation to which a statutory provision refers. This kind of incorporation of
    other legislation by reference is a rolling or ambulatory reference, as
    opposed to a static or fixed reference, which incorporates a piece of
    legislation as it existed at a particular time, with that incorporation
    persisting even after amendment or repeal of the referenced legislation: John
    Mark Keyes,
Executive Legislation
, 2nd ed. (Markham: LexisNexis Canada
    Inc., 2010), at pp. 455-456.

[119]

Given the
    direction in s. 59, the interpretation of the regulation at issue must start
    from the premise that the regulation that is intended to apply to any given
    case is the regulation that is in force from time to time and not the version
    of the regulation that was in force at the date of the accident. This premise
    supports a conclusion that the amount specified in the 2015 amendment to s. 5.1
    of the
Court Proceedings

Regulation is the statutory deductible
    that applies in this case.

(c)

The legislature
    authorized retrospective application of the regulation

[120]

On my reading,
    the language of the relevant provisions of the
Insurance Act
and of
    the 2015 amendment to the
Court Proceedings

Regulation corresponds
    with the application of the rolling incorporation rule because these provisions
    indicate that the 2015 amendment was intended to apply to accidents that
    occurred both before and after the date of its promulgation. One must interpret
    s. 267.5(7)3(i) in the broader context of related provisions in the
Insurance
    Act
that prescribe how the statutory scheme for deduction from
    non-pecuniary damage awards in automobile accident cases operates.

[121]

Damages are first
    calculated without regard to these provisions. Subsection 267.5(7) begins:

Subject to subsections (5), (12), (13) and (15), in an action
    for loss or damage from bodily injury or death arising directly or indirectly
    from the use or operation of an automobile, the court shall determine the
    amount of damages for non-pecuniary loss to be awarded against a protected
    defendant in accordance with the following rules:

1. The court shall first determine the amount of damages for
    non-pecuniary loss for which the protected defendant would be liable without
    regard to this Part [Part VI of the
Insurance Act
, the Part concerning
    Automobile Insurance].

[122]

The trial judge
    must then determine if the statutory deductible is to be deducted from the
    damage award. It will not be deducted if the damages awarded exceed a prescribed
    amount. Subsection 267.5(8) provides:

Subparagraph 3 i of subsection (7) does not apply if the amount
    of damages for non-pecuniary loss, other than damages for non-pecuniary loss
    under clause 61(2)(e) of the
Family Law Act
, would exceed the amount
    determined in accordance with subsection (8.3) in the absence of that
    subparagraph.

[123]

The amount
    determined under subsection 267.5(8.3), above which the statutory deductible
    does not apply, is indexed to inflation:

For the purposes of subsection (8), the amount shall be
    determined in accordance with the following rules:

1. Until December 31, 2015, the amount is $121,799.

2. On January 1, 2016, the amount set out in paragraph 1 shall
    be revised by adjusting the amount by the indexation percentage published under
    subsection 268.1(1) for that year.

3. On the 1st day of January in every year after 2016, the
    amount that applied for the previous year shall be revised by adjusting the
    amount by the indexation percentage published under subsection 268.1(1) for the
    year.

[124]

Section 5.1(1)
    of the
Court Proceedings

Regulation, which prescribes the
    actual amount of the statutory deductible, implements an identical
    inflation-adjustment regime according to the same schedule of dates as in s.
    267.5(8.3). Both of these provisions refer to s. 268.1(1) of the
Insurance
    Act

as the source of the applicable indexation percentage.

[125]

A regulation applies
    retrospectively where authorized by the regulations enabling statute, either
    by express words or by necessary implication:
British Columbia (Attorney
    General) v. Parklane Private Hospital Ltd.
, [1975] 2 S.C.R. 47, at p. 60;
    Keyes, at p. 498-9. In my view, the
Insurance Act
authorizes the
    immediate application of the amended regulation to accidents that occurred
    before its promulgation. The fact that the dates for calculating the prescribed
    damage quantum in s. 267.5(8.3) of the
Insurance Act
,
above
    which the deductible does not apply, match the dates in s. 5.1(1) of the
Court
    Proceedings

Regulation proves that the legislature must have
    authorized the executive to amend s. 5.1(1) with retrospective application to
    pending and future proceedings.

[126]

Concluding that
    the statutory deductible was intended to apply retrospectively helps achieve
    the policy of the Act. Like the pre-judgment interest provisions in the
Courts
    of Justice Act
, the provisions respecting the statutory deductible in the
Insurance
    Act
recognize that both the quantum of the deductible and the prescribed
    damage quantum above which the deductible does not apply require variation in
    the future to keep pace with economic realities.

[127]

The incorporation
    of a formula for calculating the statutory deductible in s. 5.1(1) of the
Court
    Proceedings

Regulation on a go-forward basis, which is based on a
    published indexation percentage, demonstrates that the quantum will adjust
    according to future inflation rates. The time value of the deductible will
    properly correspond with that of the damage quantum above which the deductible
    does not apply only if the quantum of the deductible is inflation-adjusted to
    the date of the award of damages rather than to the date of the accident. As
    the defendant puts it in its factum, since the jury awards damages in todays
    dollars, the quantum of the deductible should similarly be calculated in
    todays dollars.

[128]

Accordingly,
    there is no need to deal with the submissions regarding the effect of the
    presumption regarding procedural provisions. My earlier comments on the
    relevance of
Somers

to the prejudgment interest issue apply
    here as well.

[129]

For these
    reasons, I conclude that the legislature intended for the 2015 amendment to s.
    5.1(1) to have retrospective application. Accordingly, the amendment applied at
    the time of the judgment and the trial judge erred in holding otherwise. I
    would allow this ground of appeal.

E.

CONCLUSION ON APPEALS FROM NOV. 25, 2015 JUDGMENT

[130]

In the result,
    the final judgment should have been in the following amounts:

1.

General
(i.e., Non-Pecuniary)
Damages
=
$50,000 - $36,540 = $13,460

2.

Future Housekeeping
=
$10,000 -
    $4,150 = $5,850

3.

Prejudgment Interest
on General Damages
(3%)
=
3% x
$
13,460
    x 7
years = $
2,826.60

Total =
    $22,136.60

F.

THE COSTS APPEAL

[131]

The trial judge,
    after taking into consideration the statutory deductible in relation to
    non-pecuniary damages and the deductions for SABs that he found to be
    appropriate, concluded the judgment sum (inclusive of pre-judgment interest) to
    be $34,000 and awarded the plaintiff his costs fixed in the amount of
    $409,098.48. In assessing costs, he concluded that the amendment to s. 267.5(9)
    of the
Insurance Act
, effective August 1
st
, 2015, was
not
to be taken into consideration. He did so as a
    matter of fairness and in reliance on a decision of the Superior Court in
Carlton
    Condominium Corporation No. 21 v. Minto Construction Limited
(2002) 21
    C.P.C. (5th) 308 (Ont. S.C.), where the trial judge refused to apply changes
    made to the costs regime that came into effect between the time judgment was rendered
    and the time costs were assessed, approximately two months later. Both the
    judge in the
Condominium
case and the trial judge in the case before
    this court were of the view that it would be unfair to impose a new costs
    amendment on parties who had conducted the litigation throughout under the
    costs regime formerly in place.

[132]

Further reliance
    was placed on this courts decision in
Rider v. Dydyk
. In
Rider
,
this court confirmed that, under the
    former s. 267.5(9) of the
Insurance Act
(the version in force before
    the August 1, 2015 amendment), the statutory deductible was not to be
    considered in determining a partys entitlement to costs.

[133]

Prior to August
    1, 2015, s. 267.5(9) provided:

In an action for loss or damage from bodily injury or death
    arising directly or indirectly from the use or operation of an automobile, the
    determination of a partys entitlement to costs shall be made
without regard
to the effect of paragraph 3 of
    subsection (7) on the amount of damages, if any, awarded for non-pecuniary
    loss. [Emphasis added.]

[134]

Effective August
    1, 2015, the subsection was amended and the words without regard were changed
    to with regard so that the subsection now reads:

In an action for loss or damage from bodily injury or death
    arising directly or indirectly from the use or operation of an automobile, the
    determination of a partys entitlement to costs shall be made
with regard
to the effect of paragraph 3 of subsection
    (7) on the amount of damages, if any, awarded for non-pecuniary loss. [Emphasis
    added.]

[135]

I conclude that
    this amendment applies to the fixing of costs in this case for two reasons: (1)
    there is no vested right to costs, and (2) costs legislation is procedural.

[136]

First, there is
    no vested right to costs; like the rate of prejudgment interest, any
    entitlement to costs lacks the required crystallization and certainty of vested
    rights. The statutory scheme relating to costs, like that relating to prejudgment
    interest, is discretionary in nature. Subsection 131(1) of the
Courts of
    Justice Act
provides:

Subject to the provisions of an
    Act or rules of court, the costs of and incidental to a proceeding or a step in
    a proceeding are in the discretion of the court, and the court may determine by
    whom and to what extent the costs shall be paid.

The language in this provision demonstrates that there
    is no vested right to costs.

[137]

Second, costs legislation
    has long been considered procedural for the purposes of determining the
    temporal application of legislation:
Wright v. Hale
(1860), 30 L.J.
    Ex. 40, at p. 42. In
Canadian Broadcasting Corp. Pension Plan (Trustee of)
    v. BF Realty Holdings Ltd.

(2002), 166 O.A.C. 226, at paras. 12-14,
    and in
Celanese Canada Inc. v. Canadian National Railway Co
.
(2005), 196 O.A.C. 60, at para. 55, this court held that, because legislation
    concerning litigation costs is procedural, a newly-enacted costs grid applied
    to legal services rendered before it came into force. Similarly, the amendment
    to s. 267.5(9) dealing with the matter of quantification of costs is a
    procedural provision that applies to accidents that occurred before its
    enactment.

[138]

For these
    reasons, I am of the view that the amendment should have applied in this case
    and the trial judge erred in not so holding.

[139]

On his figures,
    the plaintiff achieved a judgment  for purposes of the costs calculation - of
    $69,185. It was not clear from his reasons how he came to this figure. The
    judgment sum to which the plaintiff was entitled was $34,000; if the statutory
    deductible of $30,000 the trial judge found to be applicable at the time is
    added to that figure, the resulting number is $64,000.

[140]

In any event, I
    have concluded that the amended statutory deductible was effective at the time
    of the judgment and ought to have applied, rather than the $30,000 number the
    trial judge used.

[141]

Similarly, the
    deduction for the SABs in relation to HKHM expenses further reduces the
    judgment amount. The number that ought to have been considered as the
    plaintiffs recovery in the costs consideration is, for the reasons given,
    $22,136.60.

[142]

This number is
    important for a number of reasons but particularly in relation to the
    defendants offer to settle.

[143]

On March 13,
    2014, the defendant offered to settle the plaintiffs claim on the following
    basis:

1. To pay the
    plaintiffs $40,000 inclusive of all damages;

2. To pay prejudgment
    interest on the $40,000 in an amount as assessed or agreed at five percent per
    annum from the date of notice of claim;

3. To pay the plaintiffs
    costs and disbursements in an amount as assessed or agreed on a partial
    indemnity basis to the first day after the offer is served;

4. The plaintiffs to pay the
    defendant his costs and disbursements in an amount assessed or agreed on a
    partial indemnity basis from the second day after the offer was served;

5. If the offer was accepted
    by the plaintiffs within 30 days of service, the plaintiffs would not pay costs
    to the defendant in accordance with paragraph 4;

6. The offer was open until five
    minutes after the commencement of the trial.

[144]

The trial judge
    concluded on his numbers that the judgment amount exceeded the offer and
    accordingly no costs consequences followed from the offer.

[145]

In this court,
    the defendant submits that, once the statutory deductible was taken into
    account, its offer clearly exceeded the judgment sum, and that the costs
    consequences that flow from r. 49.10(2) of the
Rules of Civil Procedure
should follow  the plaintiffs should be entitled to their partial indemnity
    costs only to the date of the offer and the defence should have its costs
    thereafter.

[146]

The plaintiffs
    submit that the offer was not a proper r. 49 offer for a number of reasons, but
    primarily because the requirement for the plaintiff to pay the defendants costs
    after the offer was served resulted in uncertainty concerning the amount of the
    offer. The plaintiff could never know what those costs were at any given moment
    and could not, therefore, make an informed decision about whether or not to
    accept the offer. It was not, in the plaintiffs submission, a proper r. 49
    offer and should not be considered in this courts costs analysis.

[147]

In my view, the defendants
    offer was a valid r. 49 offer and, based on the amount of the trial judgment as
    revised according to these reasons, was more favourable than the judgment that
    the plaintiffs achieved at trial.

[148]

In this courts
    decision in
Rooney (Litigation Guardian) v. Graham
(2001), 53 O.R.
    (3d) 685 the court concluded that an offer made by the plaintiff in that case
    was a valid r. 49 offer even though the terms included a provision for costs
    not unlike the provision in the defendants offer.

[149]

In
Rooney
,
    the plaintiffs offer was served on all defendants in four separate actions.
    She offered to settle the action as follows:

1. $800,000 (after deduction
    of advance payments);

2. Prejudgment interest at
    ten percent per year on the sum of $225,000 from the date of the offer to the
    date of settlement or judgment; and

3. Reasonable party-and-party
    costs, as assessed by an assessment officer or agreed upon, up to the date of the
    offer, and afterwards reasonable solicitor-and-client costs as assessed or agreed
    upon.

[150]

This court
    concluded that Rooneys offer to settle was a valid r. 49 offer and upheld the
    trial judges order applying r. 49.10. The appellants main ground of appeal
    was that, by including a provision for ongoing solicitor-and-client costs,
    Rooneys offer was not an offer to settle under r. 49 and therefore could not
    attract the costs consequences of r. 49.10. Laskin J.A., writing for the
    majority, with Carthy J.A. dissenting on this point, rejected that submission.
    The court recognized that a provision for ongoing party-and-party (i.e.,
    partial indemnity) costs is in some measure uncertain, but such provision
    alone does not invalidate an offer that otherwise complies with r. 49.

[151]

In my view, the defendants
    offer in this case was a valid r. 49 offer and it exceeded the plaintiffs
    judgment. In the ordinary course, it should follow that the plaintiffs would be
    entitled only to their partial indemnity costs to the date of the offer and the
defendant to its partial indemnity
    costs
thereafter.

[152]

However, in his
    reasons on costs, the trial judge said that, if he was incorrect in his
    calculation of the judgment amount, and it was determined that the deductible
    was to be taken into account so as to reduce the judgment figure for costs
    purposes, he would have ordered that each side bear its own costs. The
    defendant has informed this court that it is prepared to live with that order
    and will not require the plaintiffs to pay the defendants partial indemnity
    costs from the date of the offer.

[153]

The plaintiff,
    however, in this court asserts and maintains his entitlement to substantial
    indemnity costs on the basis of s. 4(6) of the
Victims Bill of Rights,
    1995
. The trial judge in his reasons and the defendant in its factum noted
    that, before the trial judge had made his decision on costs, the plaintiffs had
    abandoned their claim for costs on the higher scale for which that statute
    provides. The record before this court does not disclose that any effort was
    made by way of motion before the trial judge to have the reasons corrected in
    this or any other relevant respect. In the circumstances, this court must
    accept the reasons of the trial judge as they were written. I would not give
    effect to the plaintiffs submissions that he should be entitled to costs on
    the higher scale.

[154]

The trial
    judges assessment of costs, in any event, at approximately $409,000 on a
    judgment of $22,136.60, (or $34,000, as the trial judge found) is out of all
    proportion and cannot stand. This was a chronic pain case. These sorts of cases
    are never a sure thing from the plaintiffs perspective. The defence will, as
    here, put the plaintiff to the strict proof of his case. There was nothing
    wrong with the defence expert giving evidence that he found signs suggestive
    of malingering in the plaintiffs test scores.

[155]

A defendant is
    not expected to sit back and simply take a plaintiffs evidence at face value. This
    plaintiff had, between the time of the accident and the time of trial, managed
    to earn a black belt in martial arts. Given that fact, it is not surprising
    that the defence argued that the plaintiff was not as disabled as the plaintiff
    had suggested in his evidence, nor was it inappropriate for the defence to lead
    psychiatric evidence to suggest that the plaintiff was a malingerer. This defence
    evidence did not waste court time, as the plaintiff argues. Indeed, it is
    apparent from the verdict that the jury preferred and accepted the defence
    version of the case.

[156]

The plaintiffs
    lowest offer to settle was for $500,000 plus costs. These parties were very far
    apart in terms of their view of the worth of the case.

[157]

Although the
    case took some 19 days to try, any costs award must reflect the reality that
    the final judgment, after this courts correction of legal errors, was for only
    $22,136.60. The costs ordered by this trial judge are in an amount that might
    have been expected had the plaintiffs achieved a judgment closer to the range of
    value that they had placed on their case. Of course, the amount of the jurys
    verdict was $220,000, but the amount remaining from that verdict after all
    relevant deductions is the relevant one for costs assessment because a
    plaintiffs right to tort compensation is to an amount net of any collateral
    benefits and statutory deductions:
Pilon v. Janveaux
(2006),
211 OAC 19
(C.A.), at paras 15-17.

[158]

As I already
    have mentioned, in his reasons on costs, the trial judge noted that, if he was
    wrong on the application of the statutory deductible, he would have ordered
    both parties to bear their own costs. The defendant indicated to this court
    that it would be content with the trial judges alternative order. In my view, the
    conclusion that each party should bear its own costs is a reasonable one.

[159]

On any
    proportional basis, the plaintiffs costs, even taking the defence offer out of
    the equation for the moment, could not have been expected to exceed
    approximately $200,000, given the results achieved.

[160]

When the
    defendants offer comes into play, the costs payable to the defendant are
    approximately equal to or more than the plaintiff could hope to recover. In the
    circumstances, in my view, the fairest result to both sides is that each party
    bears its own costs.

G.

DISPOSITION

[161]

In the result, I
    would dismiss the plaintiffs appeal and allow the defendants appeal,
    including its appeal from the trial judges costs award. For the reasons that I
    have provided, I would reduce the amount of the judgment to $22,136.60 and I
    would order each party to bear its own costs of the proceedings below.

[162]

I would allow
    the parties to file written submissions on the costs of these appeals to the
    panel, the defendant within two weeks of the release of these reasons and the
    plaintiff within two weeks thereafter, with submissions by each party not to
    exceed ten pages in length.

Released: DD SEP 19 2017

J. MacFarland J.A.

I agree. Doherty
    J.A.

I agree. Paul
    Rouleau J.A.





[1]

In the
Interpretation of Legislation in Canada
, 4
th
ed. (Toronto: Thomson Reuters Canada Ltd., 2011) at p. 192 Pierre-Andre Cote
    relies on
Upper Canada College v. Smith
(1921), 61 S.C.R. 413 at pp.
    442-43 for the proposition that authorities defining procedure in private
    international law cannot be mechanically transposed to transitional law.



[2]

Statutory Accident Benefits Schedule  Accidents on or
    After November 1, 1996
, O. Reg. 403/96 as am., s.
    46(2).



[3]

Statutory Accident Benefits Schedule  Effective September
    1, 2010,
O. Reg. 34/10, as am., s. 51(3).



[4]

I note that minor amendment have also been made to ss. 127 and
    128 where no temporal language has been incorporated. This is not surprising
    given the nature of those amendments. See for example:

Courts
    of Justice Amendment Act, 1989
, S.O., c. 55, s. 26;
Access to Justice
    Act, 2006
, S.O. 2006, c. 21, s. 18;
Courts of Justice Statute Law
    Amendment Act, 1994
, S.O. 1994, c. 12, s. 44.



[5]
Ontario, Legislative Assembly,
Official Report of Debates (Hansard)
, 41
st
Parl. 1
st
Sess., No. 8 (15 July 2014), at pp. 237-238 (Hon. Charles
    Sousa)



[6]

Court Proceedings for Automobile Accidents that Occur on or After November
    1, 1996
, O Reg 461/96, s. 5.1(1) [version in effect to July 31, 2015].



[7]

Court Proceedings for Automobile Accidents that Occur on or After November
    1, 1996
, O Reg 461/96, s. 5.1(1) [version effective August 1, 2015].


