Court Refuses To Hear Motion On Putting Effect of Statutory Deductible To The Jury, Nwokomah v. Galle, 2017 ONSC 6880

By Nicholas R. Carmichael Nov 28, 2017

Justice Lucy McSweeney, of the Superior Court of Justice, released a decision on November 22, 2017, dismissing a Plaintiff’s motion under both Rule 21 and Rule 22. The Plaintiff had asked the Court to decide whether s. 267.5(7)(1) of the Insurance Act  required the statutory deductible to be explained to Juries by the Trial Judge in motor vehicle accident cases.

The Plaintiff had essentially asked the Motions Judge to make an order that would bind the Trial Judge with respect to the substance of a hypothetical Jury Charge. No Trial had been set and the Pre-Trial Conference had not taken place yet. 

The question of law posed relied upon the assertion that members of the public (i.e. prospective jurors) invariably have knowledge of the statutory deductible. Publicly-available materials were incorporated into the Plaintiff’s motion materials to make this case.

In a nutshell, Plaintiff’s counsel argued that unless Juries are instructed about the statutory deductible, they will be deprived from knowing that an award of general damages, falling below the statutory deductible, will result in a nil judgment for a Plaintiff.

The Defendants argued that the motion was premature, and improperly constituted under both  Rule 21 and Rule 22. 

The court held that the motion was improperly constituted under Rule 21 because whether Juries have knowledge of the statutory deductible is not an issue of law raised by the pleadings. The motion was improperly constituted under Rule 22 because there was no concurrence between the parties as to the stated special case or the question of law posed. 

Resolution of the issue under either Rule would not dispose of all or part of the action, substantially shorten the proceedings or result in costs savings to either party or the public.   None of the requirements prescribed by the Rules on such a motion were present.

This decision is notable because of the emphasis placed on the savings of costs to the “public” rather than to the parties exclusively.  The decision implies that the Court is cognizant of scarce judicial resources – and loath to hear a motion that may ultimately have been moot. 

The Defendants were awarded their full partial-indemnity costs of $3,583.38.

Nicholas Carmichael is the author of this blog and an associate at Zarek Taylor Grossman Hanrahan, he also assisted on this file. If you have a question about this blog or a similar file, please contact Nicholas.