The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/1527910
www.canadianlawyermag.com 45 The longer that award money stays tied up as legal proceedings continue, the longer that money can be used by the CMPA to invest in its own portfolio, says Mladenovic. "So, when I say to you that they have no incentive to settle cases early and efficiently, that's not my opinion. That's just math." Michael Hodgins, a lawyer at MD Lawyers and part of the team representing the plaintiff in the case involving the CMPA, says the medical malpractice bar, for a long time, has tried to put before the courts the argument that the returns on investments earned by insurers and others who represent defendants in court cases are relevant. "How can you not consider those returns? What the court of appeal has said is that not only is this relevant – you should consider them." Lawyers like Nijjar, Mladenovic, and Hodgins hope the two recent decisions will lead to prejudgment interest awards for plaintiffs closer to what the CMPA or insurers earn on their investments. In August, the Ontario appeal court reversed a lower court decision in Henry v. Zaitlen, which said the plaintiff 's prejudgment interest should be set at 1.3 percent, not the five percent interest the plaintiff felt he was entitled to under the Courts of Justice Act (CJA). The CMPA was part of the defence in this case. The trial judge's prejudgment interest order came after a jury verdict in a medical malpractice case that awarded Sean Omar Henry $204,000 in non-pecuniary damages. It also awarded $100,000 to the estate of Henry's wife, who passed away before trial, for loss of care, guidance, and companionship under the Family Law Act. Typically, plaintiffs in personal injury and malpractice cases are awarded prejudgment interest for non-pecuniary damages from the date of the cause of action, in this case, July 2010, to the date of the verdict, which in this instance was December 2021. The defendant, Dr. Marshall Zaitlen, had successfully argued in the lower court that the 1.3 percent interest he was asking for was justified because the prescribed five percent rate does not reflect the current "reality of market interest rates" and would "unjustly overcompensate" Henry. However, the court of appeal reversed the lower court order, with Justice Lois Roberts saying on behalf of the appeal panel: "In my view, the trial judge effectively exercised his discretion based on the incorrect principles that there is no presumptive statutory prejudgment interest rate [of five percent]." In the second case, Aubin v. Synagogue and Jewish Community Centre of Ottawa, So, when I say to you that they have no incentive to settle cases early and efficiently, that's not my opinion. That's just math" Aleks Mladenovic, TR Law CMPA INVESTMENT PORTFOLIO (NET VALUE) 2021 $5.92B, up $356M due to investment gains 2022 $5.4B, a drop of $485M due to investment loss and member fee cuts 2023 $5.6B, up $169M from 2022 due to $468M investment gains