On June 22, 2016, an endorsement was issued in Dimopoulos v
Mustafa, 2016 ONSC 4119 pertaining to issues raised during the
argument of a threshold motion in a motor-vehicle accident case.
These issues included the following:
The applicable statutory deductible for general damages;
The applicable rate of pre-judgment interest on general
Whether the court should award a remedial penalty against the
defendant's insurer as a result of its conduct throughout the
action and at mediation.
By way of background, on May 26, 2015 the jury awarded the
plaintiff $37,000 for general damages. The court accepted the
plaintiff's contention that the applicable deductible was
$30,000 because the jury awarded damages before the August 1, 2015
amendments to the Insurance Act. Although the
plaintiff's entitlement to general damages was still
in question after the amendment due to the outstanding threshold
motion, the amount had already been set before the
amendment came into effect. The Court ruled that the appropriate
deductible in respect of a given award is the deductible that was
in effect at the time the quantum was determined by the Court,
which is important in light of the fact that the deductible now
The plaintiff in this case also successfully argued that he was
entitled to a 5 percent pre-judgment interest rate on general
damages. In coming to its decision, the Court relied on the
decisions in El-Khodr v. Lackie, 2015 ONSC 4037; Cobb
v. Long Estate, 2015 ONSC 6799; and Carr v. Modi,
2016 ONSC 1300; all of which determined that the August 1, 2015
amendments to the Insurance Act were substantive rather
than procedural in nature, and thus could not apply
retrospectively. These decisions all rely on the Ontario Court of
Appeal's decision in Somers v. Fournier, 2002 CanLII
45001 (C.A.), where it was determined that pre-judgment interest
was a matter of substantive rather than procedural law.
This case also explicitly discards a line of cases which
characterize pre-judgment interest (and the statutory deductible)
as questions of procedural law which allow for retrospective
application, including Cirillo v. Rizzo, 2015 ONSC 2440
and Corbett v. Odorico, 2016 ONSC 1964.
Of further interest was the Court's decision not to apply a
remedial penalty "despite the astonishingly aggressive
opposition by the defendant" as well as "an obvious
attempt to reduce the plaintiff's award to zero." The
plaintiff argued that the basis for such a penalty existed pursuant
to sections 258.5(1) and (5) of the Insurance Act, which
requires an insurer to "attempt to settle the claim as
expeditiously as possible" failing which, the Court can award
The plaintiff successfully argued that in the circumstances,
privilege over the defendant's mediation brief ought to be
lifted. The plaintiff quoted several statements from the
defendant's mediation brief as evidence of the defendant
insurer's failure to attempt to settle the claim as
expeditiously as possible.
The Court ultimately reviewed the mediation brief and noted that
the defendant assessed the plaintiff's claims "in
substantial detail and explained why it believed that the
plaintiff's evidence was weak". This allowed the plaintiff
to review his risks and trial strategy and "enabled the
plaintiff to obtain an understanding of the defendant's
position and the reasons for that position."
The Court's commentary on this point should provide some
comfort to insurers that an aggressive position coupled with a
negative outcome on the issue of damages does not necessarily
constitute a failure to participate meaningfully in the mediation
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).