NADINE DEGAGNE, PLAINTIFF - v. -, 2023 SKKB 94

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 94 Date: 2023 05 03 Docket: QBG-SA-01312-2012 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: NADINE DEGAGNE, PLAINTIFF - and - MARSHALL MOSES BIRD, DEFENDANT - and - SASKATCHEWAN GOVERNMENT INSURANCE, THIRD PARTY DEFENDANT Counsel: Jonathan S. Abrametz for the plaintiff No one for the defendant Jessie C. Buydens for the Third Party defendant ___________________________________________________________________________ TERMS OF THE JUDGMENT AND COSTS ZERR J.

May 3, 2023 ___________________________________________________________________________ Introduction [ 1 ] On December 9, 2022, a six-person jury found Marshall Moses Bird liable in negligence for the injuries and losses he caused to the plaintiff, Nadine DeGagne, when he drove while impaired and caused a rear-end collision with the van she was driving on September 21, 2010. [ 2 ] Although Mr. Bird never defended the action, Saskatchewan Government Insurance [SGI] was added as a third party defendant pursuant to s. 45(6) of The Automobile Accident Insurance Act , RSS 1978, c A-35 . In due course, SGI filed a

statement of defence and defended the action at trial. [ 3 ] The first question the jury was required to answer was: 1. Did the September 21, 2010 motor vehicle accident cause or contribute to any injury or loss experienced by Ms. DeGagne after March 3, 2011? To this question, the jury answered yes . [ 4 ] The next question was: 2. Was there a real and substantial risk that a pre-existing condition would have manifested in future, even if the September 21, 2010 accident had not happened? The jury answered yes. [ 5 ] The next question was: 3. If the answer to question 2 is “yes”, by what percentage should Ms.

DeGagne’s damages be reduced? The jury answered 20%. [ 6 ] The jury went on to award the following damages: Non-pecuniary damages: $72,000.00 Past loss of income: $51,000.00 Future loss of income: $75,000.00 Past cost of care: $26,000.00 Future cost of care: $58,200.00 Future cost of housekeeping services: $45,000.00 Respecting lost income, the verdict sheet includes the following: “the court will deduct from this figure the income replacement benefits received by Ms.

DeGagne from WCB ($10,088.72)”. [ 7 ] After the verdict, I advised counsel that, pursuant to Rule 9-29 of The Queen’s Bench Rules , I was prepared to direct that a judgment be entered in the terms of the verdict. On behalf of SGI, Ms. Buydens asked for time to consult with her client. [ 8 ] On February 16, 2023, counsel appeared before me to make submissions in relation to the terms of the judgment and costs. Issues [ 9 ] Framed by counsels’ submissions there are two main issues to be determined: 1. In what terms should the judgment issue? 2. What is the appropriate award of costs. Analysis 1.

In what terms should the judgment issue? Ms. DeGagne’s Position [ 10 ] Respecting damages, Ms. DeGagne submits that the figures set out above at paragraph 6 should be added together, then reduced by $10,088.72 (the income replacement benefits previously paid by the Workers’ Compensation Board [WCB]). This results in a figure of $317,111.28. That figure must then be reduced by 20 percent, resulting in total damages of $253,689.00 . [ 11 ] Respecting pre-judgment interest, Ms.

DeGagne endorses the following approach: • add damages for past loss of income ($51,000.00 - $10,088.72) and past cost of care ($26,000.00) = $66,911.28 • calculate pre-judgment interest on $66,911.28 pursuant to s. 6(1) of The Pre-judgment Interest Act , SS 1984-85-86, c P-22.2 [ Act ], which states: 6(1) Subject to subsections (2) and (3), the court shall calculate interest under this Act from the day on which loss or damage is first sustained to the day of the judgment at the rate determined by averaging the interest rates in effect during that period. According to Ms.

DeGagne, the date on which she first sustained loss or damage is September 21, 2010, the date of the accident. • reduce pre-judgment interest by 20 percent.

SGI’s Position [ 12 ] Respecting damages, SGI submits that the following figures should be added together and then reduced by 20 percent: Non-pecuniary damages: $72,000.00 Past loss of income: $51,000.00 Future loss of income: $75,000.00 Past cost of care: $26,000.00 Future cost of care: $58,200.00 Future cost of housekeeping services: $45,000.00 The total is $327,200.00. When reduced by 20 percent, it is $261,760.00. [ 13 ] SGI then deducts the $10,088.72 previously paid to Ms. DeGagne, as well as $26,973.49, the amount it claims was previously paid to cover Ms.

DeGagne’s medical expenses ($17,825.20 in relation to her 2010 claim and $9,148.29 in relation to a 2014 claim). In this way, SGI arrives at total damages of $224,697.79. [ 14 ] Respecting pre-judgment interest, SGI endorses the following approach: • add damages for past loss of income ($51,000.00 - $10,088.72) and past cost of care ($26,000.00) = $66,911.28 • reduce $66,911.28 by 20%, which results in a figure of $53,529.02 • calculate pre-judgment interest on $53,529.02 pursuant to s. 6(2) of the Act , which states:

(2) If a judgment includes damages for expenses incurred or income lost, the court shall: (

a) determine the total of those damages sustained within the three-month period commencing on the day on which loss or damage is first sustained and within each subsequent three-month period; and (

b) calculate interest from the last day of each three-month period described in clause (

a) to the date of judgment, on the total of the damages sustained within the three-month period, at the interest rate in effect on the last day of the three-month period. Damages [ 15 ] Respecting damages, I agree with Ms. DeGagne that the $10,088.72 previously paid for income replacement must be subtracted from the total amount of damages before that amount is further reduced by 20 percent. [ 16 ] The bigger issue is whether the amount previously paid to Ms.

DeGagne to cover medical expenses should similarly be subtracted. [ 17 ] Respecting these amounts, SGI argues we cannot know whether the jury’s award of $26,000.00 for past cost of care included compensation for the same costs previously covered by WCB and SGI. In support of its position, SGI directs my attention to Exhibit P-12, the agreed statement of facts. Paragraph 7 states: After the [2010] Accident, Ms. DeGagne received Saskatchewan Worker’s Compensation Board income benefits of $10,088.72 and medical benefits of $17,825.20. [ 18 ] SGI also directs my attention to the evidence of Michelle Boswell.

However, when I review my notes of Ms. Boswell’s evidence, it appears she testified to an amount less than $9,148.29. When asked about Ms. DeGagne’s 2014 SGI claim, Ms. Boswell said Ms. DeGagne’s vehicle was a total loss, resulting in a payout of $3,799.00. Respecting Ms. DeGagne’s injury claim, she said SGI covered the costs of physiotherapy, chiropractic treatments and massage in an amount totalling approximately $3,000.00, as well as an eight-week secondary treatment program that cost $3,700.00. On Ms.

Boswell’s evidence, the 2014 injury claim totalled $6,700.00. [ 19 ] Regardless, I am not prepared to reduce the damage award to reflect any amount previously paid by either WCB or SGI in relation to Ms. DeGagne’s medical expenses. This is because: (

i) the evidence; (ii) Mr. Abrametz’s closing; and (iii) my charge each made clear the only amount Ms. DeGagne was claiming for cost of care was the cost of THC. [ 20 ] Respecting cost of care, I charged the jury as follows: PAST COST OF CARE [272] Ms. DeGagne testified that, at some point, she began purchasing THC as a sleep aid. There is little evidence as to when this occurred, other than that it began during a time when a prescription was required. There is little evidence as to cost, other than the fact that Ms.

DeGagne presently spends around $45.00 per week on THC. [273] In relation to past cost of care, Ms. DeGagne bears the onus of proving two things on a balance of probabilities. First, she must prove the expenditure arose as a result of the September 2010 accident.

[274] That is why question 6 reads as follows: 6. Has Ms. DeGagne incurred expenses for her care as a result of the September 21, 2010 accident to the date of trial? [275] You have heard Ms. DeGagne’s testimony about the efficacy of THC as a sleep aid. You have also heard Dr. Kleinman, whotestified that, although he is not an expert and has never prescribed marihuana for sleep or pain, it is reasonable to try. And, if the patientexperiences a positive result, it is reasonable to continue. There was also the evidence of Dr.

Sommer who testified that the medicalliterature respecting THC and pain management is very poor, although it does show some benefit for people with certain types of nervepain or spinal cord disorders, and for people with psychological disorders such as anxiety. [276] If five of you agree the answer to question 6 is yes, you must next consider whether she has proven the amount she claims. If fiveof you agree she has, enter that number in the space provided. If the answer to question 6 is no, or you are not satisfied Ms. DeGagne hasproven the amount she claims, enter zero. FUTURE COST OF CARE [277] Ms.

Rathje was asked to calculate Ms. DeGagne’s future cost of care. To do so, she calculated the annual cost of THC bymultiplying $45 by 52, arriving at an annual cost of $2340. She then used a multiplier of 29.55 to project the cost of THC to the end ofMs. DeGagne’s life. This resulted in a figure of just over $69,000. [278] Respecting future cost of care, Ms. Brown endorsed a multiplier of 24.9. [279] For future care, there is the same threshold question as for past care. That is why question 7 reads: 7. Will Ms.

DeGagne incur expenses for her future care as a result of the September 21, 2010 accident? [280] If five of six [of] you agree she will, you must go on to consider the amount. Again, five of you must agree on the amount youenter in the space provided. [21] Placed in context, any suggestion the jury may have compensated Ms. DeGagne for costs other than THC is notreasonable. Notably, the jury’s award of $26,000.00 for past cost of care is very close to the annual amount of $2,340.00 multiplied bythe 12 years that have passed since the 2010 motor vehicle accident ($28,080.00). [22] Accordingly, I agree with Ms.

DeGagne that the damages in this case total $253,689.00. Pre-judgment Interest [23] Respecting pre-judgment interest, I have reviewed the Saskatchewan Court of Appeal’s decision in Janke vCenalta Oil Well Servicing Ltd. (1997), (SK CA), 143 DLR (4th) 613 (Sask CA) [Janke]. Mr. Janke was a formeremployee of Cenalta who sued for damages for wrongful dismissal. After a jury determined Mr. Janke should receive 12 months pay inlieu of notice, the trial judge awarded pre-judgment interest pursuant to s. 6(2) of the Act.

I interpret this to mean pre-judgment interestwas to be calculated as follows: • determine the date the loss or damage was first sustained; • determine the wages lost in three-month intervals from that date forward; • calculate the pre-judgment interest owing in respect of each three-month interval, from the last day of each three-month period untilthe date of judgment; • total the pre-judgment interest owing in respect of all three-month intervals. [24] The issue on appeal was whether the trial judge had erred by awarding interest on an interval, as opposed to alump-sum, basis. [25] As part of her analysis, Jackson J.A. considered the origin and purpose of the Act, as well as the relevantjurisprudence.

Having done so, she concluded: After considering the Act in its entirety, the history of its development and subsequent case law, I conclude the legislature intended thatwhere the measure of damages can be made in terms of lost wages, interest is to be calculated on the basis of three-month intervals unders. 6(2) and not on a lump sum basis as of the date of injury under s. 6(1).

When a court awards damages for “income lost”, it “shall”calculate interest from the last day of each three-month period commencing on the day damage is first sustained to the day of judgment. [Emphasis added] [26] However, in this case, a problem arises insofar as it is impossible to know with any degree of certainty orprecision how the jury arrived at the $51,000.00 figure. [27] Ms. DeGagne testified that, had the September 21, 2010 accident not occurred, she would have been promoted tothe coordinator position at SIMFC and earned $26.00 per hour, as opposed to the $21.00 she was then earning.

She also testified that,had the accident not occurred, she would have been taking on side jobs in construction, earning an additional $1,000.00 per month.Finally, she testified that, had the accident not happened, she could have been doing construction work or driving machinery as shepreviously had for MDM, the road construction, trenching and excavating company owned by her uncle, Mario Boisvert. Mr. Boisvertalso testified, stating that, had Ms. DeGagne returned to his company, she would now be earning an annual salary of around $90,000.00or $100,000.00.

[ 28 ] Based on this evidence, four hypotheticals were put to the plaintiff’s expert, Ms. Kelly Rathje. [ 29 ] In hypothetical #1, Ms. Rathje assumed that, had there been no accident, Ms. DeGagne would have become a rock truck operator earning $85,000.00 per year. Respecting this hypothetical, Ms. Rathje calculated an annual after-tax income loss of just over $25,000.00. [ 30 ] In hypothetical #2, Ms. Rathje assumed that, had there been no accident, Ms. DeGagne would have earned an extra $1,000.00 every month. Respecting this hypothetical, Ms.

Rathje calculated an annual after-tax income loss of $7,500.00. [ 31 ] In hypothetical #3, Ms. Rathje assumed that, had there been no accident, Ms. DeGagne would have been promoted and earned an extra $5.00 per hour. Respecting this hypothetical, Ms. Rathje calculated an annual after-tax income loss of $8,345.00. [ 32 ] In hypothetical #4, Ms. Rathje assumed that, had there been no accident, Ms. DeGagne would have earned $26.00 per hour and earned an additional $1,000.00 per month. Respecting this hypothetical, Ms.

Rathje calculated an annual after-tax income loss of $12,354.00. [ 33 ] Respecting income loss generally, the relevant parts of my charge are as follows: [250] Some of Ms. DeGagne’s income claim involves straightforward questions of fact that you must determine on a balance of probabilities. For example, Ms. DeGagne testified about matters such as her past employment with MDM Trenching and Pavement Scientific International, the reasons she left those jobs, her qualifications and experience as a youth care worker, her duties as SIMFC, her level of job satisfaction in each of her positions, and her wage.

Justin Montour testified about his wage. These are questions of fact that you determine in the usual way – by weighing evidence on a balance of probabilities. [251] However, other aspects of Ms. DeGagne’s claim involve hypothetical events because we cannot know with certainty what would have happened had there been no accident in September 2010. In this case, the hypothetical events include: • That Ms. DeGagne would have been promoted to Justin Montour’s position, earning $26.00 per hour; • That Ms. DeGagne would have returned to work driving machinery or working in construction; • That Ms.

DeGagne would have earned an additional $1000.00 per month doing construction jobs in addition to full-time work as a youth care worker; and • That Ms. DeGagne would have both been promoted and earned an additional $1000.00 per month. [252] Because these events are hypothetical, Ms. DeGagne is not required to prove them on a balance of probabilities. Instead, she must establish that the hypothetical event was a real and substantial possibility – something that legitimately could have happened and is not mere speculation.

If you find that it was a real and substantial possibility, it is then up to you to weigh its likelihood and assess the value of the loss in accordance with how likely you think it is that the hypothetical event would have occurred. However, if you find that the hypothetical event was not a real and substantial possibility, then you do not take it into account at all. [ 34 ] Respecting past income loss specifically, I charged the jury as follows: [266] You have heard evidence respecting two different approaches to past loss of income. Ms.

Rathje testified that you can use the same process: take the annual loss and employ a different multiplier, namely, 10.65. Respecting past loss of income, Ms. Brown testified to a multiplier of 13. [267] The problem using a multiplier approach to calculate past loss of income is this: it will provide a figure based on the hypothetical event coming to pass immediately and lasting throughout the entire pre-trial period, in this case 12 years. Using hypothetical 1 (driving a rock truck at $85,000 per year) as an example, the multiplier will calculate a sum based on Ms.

DeGagne immediately attaining that employment and that salary in 2010 and remaining there until 2022. [268] This is why Ms. Brown endorsed a different approach. As she put it, “for the past, it’s really just adding up a bunch of years together.” [269] In other words, if you are satisfied there is a real and substantial likelihood that, but for the September 2010 accident, any of the proposed hypotheticals would have come to pass, you can take its annual loss and multiply it by whatever number of years you believe to be appropriate.

Again, you must weigh the likelihood the hypothetical event would have occurred and assess the loss accordingly. [270] For your assistance, I will repeat the annual losses , as calculated by Ms. Rathje: • rock truck operator earning $85,000 per year: $25,000 per year • side jobs earning $1000 per month: $7,500 per year • promotion, earning $26 per hour: $8354 per year • promotion plus an extra $1000 on the side: $12,354 per year [271] Please keep in mind, these are the annual losses as calculated by Ms. Rathje. This means that, if you conclude, for example, that there is a real and substantial likelihood Ms.

DeGagne would have been taking on side jobs by 2015 (or whatever time period you choose), you could take the $7500 annual loss and multiply it by seven, to account for the seven years that elapsed between 2015 and 2022. You would then need to weigh the likelihood of that hypothetical event actually occurring and assess the loss accordingly.

[ 35 ] In the context of this evidence and these instructions, the jury awarded $51,000.00. [ 36 ] SGI recognizes that this bottom-line figure does not disclose the facts required to apply s. 6(2) of the Act . Specifically, the verdict sheet does not reveal the date upon which Ms. DeGagne first lost income, nor does it disclose the amount of income lost during any three-month interval for which the jury found there was income loss. Accordingly, SGI urges me to now make the necessary factual findings. [ 37 ] Arguably, s. 5(4) of the Act lends support to SGI’s position. It states:

(4) In a jury trial, the judge shall exercise the powers of the court under this Act . [ 38 ] However, given the following variables, there is no way for me to determine with any degree of accuracy either the hypothetical event that formed the basis of the jury’s award or the date upon which the jury found that event to have occurred: (

i) the number of hypotheticals; (ii) my instruction that, even if satisfied there was a real and substantial likelihood a hypothetical event would have come to pass, the jury was entitled to weigh the likelihood and assess the loss accordingly; and (iii) my instruction that it was up to the jury to determine when the hypothetical event would have occurred. [ 39 ] To me, these variables distinguish this case from Janke , a wrongful dismissal action with clear evidence as to wages and time frames.

Notably, in the excerpt cited above, Jackson J.A. states, “where the measure of damages can be made in terms of lost wages”. Here, it cannot. [ 40 ] Accordingly, I decline to make the factual findings necessary to calculate pre-judgment interest pursuant to s. 6(2) . However, recognizing that strict application of s. 6(1) will result in a degree of over-compensation, I am prepared to exercise the discretion afforded by s. 5(3), which states:

(3) If it is proven to the satisfaction of the court that it is just to do so having regard to the circumstances, the court may, with respect to the whole or any part of the amount for which judgment is given, refuse to award interest under this Act or award interest under this Act at a rate or for a period, or both, other than a rate or period determined pursuant to

section 6 . [ 41 ] At different points throughout her testimony, Ms. DeGagne emphasized how much she loved her position at SIMFC. It was clear to me that, as of September 2010, she had no immediate plans to leave. Nor had she really established herself in construction. Under cross-examination, she could recall having completed only two construction jobs prior to September 2010. Furthermore, any opportunity for promotion at SIMFC did not arise until 2013.

All this to say that, regardless of the hypothetical chosen, the “day on which the loss or damage was first sustained” was almost certainly not September 21, 2010. [ 42 ] Accordingly, I order that pre-judgment interest on the award for past loss of income shall be calculated as follows: • $51,000 less $10,088.72 = $40,911.28 • reduce $40,911.28 by 20% = $32,729.02 • calculate pre-judgment interest on $32,729.02 pursuant to s. 6(1) of the Act with the day on which the loss or damage was first sustained being January 1, 2013. [ 43 ] Respecting past cost of care, I have arrived at a different conclusion.

As noted above, the jury’s award of $26,000.00 for past cost of care is very close to the annual amount of $2,340.00 multiplied by the 12 years that have passed since the 2010 motor vehicle accident ($28,080.00). In fact, it is almost exactly the annual amount multiplied by 11 years ($25,740.00).

Accordingly, with respect to past cost of care, I order that pre-judgment interest be calculated in accordance with s. 6(2) as follows: • reduce $26,000.00 by 20% = $20,800.00 • calculate pre-judgment interest on $20,800.00 pursuant to s. 6(2) of the Act with the first three-month interval being September 1, 2011 – December 3, 2011 and the last three-month interval being June 1 – September 1, 2022 (for a total of 44 intervals) with the loss in each interval being $472.72. 2. What is the appropriate award of costs? Ms. DeGagne’s Position [ 44 ] Citing Siemens v Bawolin, 2002 SKCA 84 , [2002] 11 WWR 246 , Ms.

DeGagne seeks costs on a solicitor-client basis. Of the principles summarized at paragraph 118 of that decision, Ms.

DeGagne relies on the last: 118 ... 1. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred.

[ 45 ] To Ms. DeGagne, the fact she was injured by a drunk driver is part of what makes this case exceptional. It is inarguable that impaired driving is an issue of profound societal concern. Here, it forced Ms. DeGagne into lengthy and complex litigation that required four expert witnesses and three weeks of trial time. To Ms. DeGagne, SGI’s position at trial is also a relevant consideration.

While SGI argued her losses were limited to non-pecuniary losses sustained between September 21, 2010 and March 3, 2011 (for which they suggested a range of $14,000 to $35,000), the jury awarded a total amount 18 times the low end of SGI’s range. While Ms. DeGagne is careful to make clear she is not alleging litigation misconduct against SGI, she nonetheless maintains that solicitor and clients costs are necessary to denounce Mr. Bird’s conduct and ensure the jury’s award is not eroded. [ 46 ] In the alternative, Ms. DeGagne requests that costs be awarded on a column 3 basis, with second counsel.

SGI’s Position [ 47 ] SGI asks that costs be awarded on a column 1 basis, with single counsel only. Respecting second counsel, SGI notes that Ms. DeGagne’s second counsel varied throughout the trial and played a very limited role. [ 48 ] With reference to the factors set out at paragraph 31 in 1348623 Alberta Ltd. v Choubal, 2016 SKQB 200 , 94 CPC (7th) 210 , SGI submits the following: 1. This case was not particularly complex. Although there were a number of legal issues at play, the law is largely settled and the case really boiled down to a single factual issue, namely, whether Ms.

DeGagne had fully recovered from her injuries by March 3, 2011. 2. While undoubtedly of importance to the parties, this case will likely have little effect on either the community at large or the legal community. Sections 103 and 104 of The Automobile Accident Insurance Act have been repealed. 3. Although this was a somewhat lengthy trial, its length was compounded when the plaintiff’s expert, Dr. Kleinman, had a medical emergency and was unavailable to testify as originally scheduled. Although SGI does not attribute any blame to Ms.

DeGagne, they themselves incurred additional costs when their own experts had to be rescheduled at the last minute. 4. While Ms. DeGagne led evidence at trial suggesting a range of total damages between $362,000 and $1,150,000, the jury awarded damages lower than the low end of that range. 5. Respecting access to justice considerations, where SGI is the defendant, the plaintiff has the comfort of knowing that, in the event of success, not only will the judgment, but also the costs award, be paid.

In other words, when considering future plaintiffs with meritorious claims against SGI, the size of any single costs award is unlikely to be a deterrent or deny those plaintiffs access to justice. [ 49 ] SGI further submits that, if I choose to deviate from column 1, I should do so in their favour.

Citing Rule 11- 1(4), they reiterate several of the points set out above, and take issue with the conduct of plaintiff’s counsel insofar as it relates to the following: • the need for a mid-trial instruction; • finalization of the plaintiff’s witness schedule; • late concession that the plaintiff would not be seeking punitive or exemplary damages; • late abandonment of the “reduction” and “early retirement” approaches set out in Ms. Rathje’s report. Analysis [ 50 ] I am not prepared to award solicitor and client costs.

This case was not so exceptional so as to require full indemnification. [ 51 ] However, it was moderately complex. It was a three-week jury trial involving four expert witnesses. The 2009 workplace injury, as well as the number of “accidents, injuries, and incidents” that post-dated the September 21, 2010 accident, lengthened the evidence and added a layer of legal and factual complexity that, to me, easily justifies an award in excess of column 1. However, it is not one of the “most complex” matters for which column 3 is reserved.

Accordingly, I award costs on a column 2 basis. [ 52 ] Both parties had second counsel. While SGI’s counsel remained the same throughout, Ms. DeGagne’s second counsel alternated between two other members of Mr. Abrametz’s firm. Regardless, I am satisfied that two counsel were reasonably necessary to properly present the case. [ 53 ] Accordingly, SGI is ordered to pay the assessable costs of the plaintiff on a column 2 basis, including costs for second counsel, less any amounts already paid. J. K.L. ZERR