Threshold Motion Results in Dismissal of Action (But Jury Awards $58,000.00 for Loss of Competitive Advantage)

Here’s a somewhat puzzling couple of decisions. In Jennings v. Latendresse, 2012 ONSC 6982 (CanLII), Justice John Cavarzan heard a threshold motion after the jury in this MVA trial had retired. In the decision linked to in the previous sentence, he granted the motion. However, what is odd is that he then proceeded to dismiss the entire action.

This would not be surprising if the only claim had been one for non-pecuniary damages, to which the Insurance Act threshold would apply. However, in reasons subsequently released at 2013 ONSC 1017 (CanLII), in which he dealt with the issue of costs, His Honour said that although the jury had found that the plaintiff was “not entitled to non-pecuniary general damages nor any past income loss”, it had awarded to the plaintiff “the sum of $58,000.00 for loss of competitive advantage and marketability”. Yet the second set of reasons reiterated that the action had been dismissed outright, notwithstanding the award for loss of competitive advantage.

Costs were awarded on a partial indemnity basis, but with no submissions having been made on behalf of the plaintiffs. Justice Cavarzan noted that Rule 49 did not apply because the plaintiff had failed to recover judgment. But why that would be so, in the face of the jury’s award, is escaping me.

It has been suggested to me by a prominent local defence practitioner, that the proper interpretation of this decision is that loss of competitive advantage is a form of non-pecuniary general damages and therefore, the threshold ruling would bar this claim too. I have my doubts about this position, but the lawyer in question assured me that she intends to cite the Jennings decision as authority for it in the future!

(There is also the oddity of the jury having found that the plaintiff had recovered, yet also finding that she would still suffer a loss of competitive advantage.)


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