Indexed as:

Pyke v. TRI GRO Enterprises Ltd.

Between

Craig Pyke et al., plaintiffs, and

TRI GRO Enterprises Ltd. et al., defendants

[2000] O.J. No. 1322

Court File No. 69190/95

 Ontario Superior Court of Justice

Ferguson J.

                                                                  April 11, 2000.                                      

(13 paras.)

Interest -- Statutory interest -- On damages, awards -- Costs -- Party and party costs -- Entitlement to party and party costs -- Successful party.

This was a determination regarding the applicable pre-judgment interest rate and costs. All plaintiffs except the numbered company were successful in their claim for non-pecuniary damages.

HELD: The interest rate was fixed at one-half the normal rate of five per cent. The damages were sustained continually over a five-year period. To award interest on the cumulative assessment for the five years would overcompensate the plaintiffs because they had not suffered the entire loss at the time of trial. Costs were awarded on a party and party basis to the successful plaintiffs.

Statutes, Regulations and Rules Cited:

Ontario Rules of Civil Procedure, Rule 53.10.

Counsel:

Donald R. Good, for the plaintiffs.

Raymond G. Colautti and Craig M. Houle, for the defendants.

1 FERGUSON J.:-- I received written submissions dated January 5 and 18. I anticipated further reply submissions but have received none and conclude none are forthcoming.

2     In my view the rate of interest in this case is governed by s. 128(2) and Rule 53.10 because the damages were for non-pecuniary loss. Therefore the normal rate is 5%.

3     The commencement date should be the date when the cause of action arose as this is mandated by s. 128(1). Therefore the commencement date shall be the fall of 1994. For calculation purposes I shall use the date of November 1, 1994. I assessed the damages as of November 23, 1999 and so the pre-judgment calculation should end on that date and thereafter the plaintiffs shall be entitled to post-judgment interest.

4     The damages were sustained continually over the five year period. To award interest on the cumulative assessment for the whole five year period would overcompensate the plaintiffs since they had not suffered the total loss at the time the cause of action arose.

5     Therefore I shall award interest at half the prescribed rate.

6     The parties agree that the costs should be on a party and party scale.

7     I cannot fix them on the basis of the submissions so shall order them to be assessed.

8     Some of the material factors relating to the history are mentioned in the submissions and others are mentioned in my earlier reasons.

9     These include: the passage of legislation after the action was commenced, the late discovery of the caselaw which I followed in concluding no damages could be awarded at this time for diminution of property value, the failure of the claim of the numbered company.

10     The evidence relating to the numbered company was not lengthy.

11     In my view no costs should be awarded relating to the claim of the numbered company.

12     The other plaintiffs should have their costs for the entire proceeding including the costs relating to the alleged diminution of property value which would include the assessable disbursements for experts.

13     In summary, the plaintiffs other than the numbered company are awarded pre-judgment interest on their damages at the rate of 2.5% for the period November 1, 1994 to November 23, 1999. The plaintiffs other than the numbered company are awarded costs of the action to be assessed on a party and party scale. The interest and costs shall be paid by the defendants whom I found liable.

FERGUSON J.

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