Mandel v Fakhim, 2016 ONSC 6538

This was a threshold motion brought by plaintiff’s counsel during jury deliberations.  The question before the court was whether the question was rendered moot as a result of the jury’s nominal award.

Released October 20, 2016 | Full Decision [CanLII]

Mr. Mandel claimed that he suffered grievous bodily harm following a very minor collision in 2009.  He had not returned to work since that time, and took substantial amounts of prescription medication and other forms of treatment in an unsuccessful effort to manage his allegedly debilitating chronic pain.  He sought over $1.2 million in damages.  He was awarded $3,000 for general damages, which was, of course, wiped out by the then-deductible of $30,000.  He received nothing under any other head of damage.

In a must-read judgment laced with judicial pique, Justice Myers was asked to consider the threshold issue so that the plaintiff might seek costs on the award.

As an aside, his Honour sided with plaintiff’s counsel, Mr. Rachlin, on the point that the term, “threshold motion” is actually a misnomer.  Subsection 267.5 (15) of the Insurance Act states that where no pre-trial motion is brought, the trial judge shall determine the issue.  Therefore, the threshold issue is simply an additional burden on the plaintiff at trial.  As a result, contra common practice, Justice Myers affirmed (following Valentine v Rodriguez-Elizade) that the Plaintiff should argue first and have the opportunity to reply.

In this case, the threshold issue was found to be moot.  The jury clearly did not find as a matter of fact that the alleged injuries and damages had occurred as a result of the collision.  Making a legal determination that Mr. Mandel had suffered a permanent, serious impairment after this factual finding would undermine the legitimacy of the jury trial process.   On the other hand, finding that he failed to meet threshold would serve no additional purpose.  Justice Myers noted that the discretionary authority to make such a determination existed but it was not appropriate in this case.

Mr. Rachlin argued that a determination of the threshold issue would not be moot, as it would be important to the costs arguments to be made under the former s. 267.5(9).  That subsection provided that a judge was not to take account of the deductible in awarding costs.  Following a clear and extended discussion of the distinction between retroactive and retrospective enactments, Justice Myers held that, as awarding costs is a discretionary activity, and no vested right to costs had arisen at the time of the amendments a year prior to trial, he was required to take account of the deductible.  Ultimately, Mr. Rachlin conceded that the issue was moot.

Read the full decision on CanLII


Written by

Keith was raised in Etobicoke, and is excited to return to the GTA in order to practice plaintiff personal injury law. After his call to the Bar in 2009, Keith worked briefly for TD Insurance as in-house legal counsel, prior to moving to London for family reasons. He has spent the last two years working exclusively in plaintiff personal injury and medical malpractice law with a leading firm.

Through his volunteer work, he has written for The Monarch, the Brain Injury Association of London and Region’s quarterly magazine and sat on their Community Outreach committee. He was also a member of the Spinal Cord Injury of Ontario’s Fundraising Committee 2013-2014.

Keith is devoted to his wife and two boys. He loves to cook, and enjoys a good book when he isn’t working.