Read time: 3.5 minutes (approx.)
Written by: Weston McArthur (Student-At-Law)
Mathieu c Cormier, 2021 NBBR 124.
In Mathieu c Cormier, the Defendant struck the Plaintiff with her vehicle while the Plaintiff was crossing at a crosswalk in Moncton, New Brunswick.
The Plaintiff’s injuries were catastrophic, leaving her in a vegetative state for two months post-accident. The Plaintiff’s attending physician, Dr. O’Connell, wrote that “[the Plaintiff] will require long-term 24-hour supportive care. It is unlikely that she will have motor or cognitive recovery to the point where she will not require hands-on assistance” [para 32]. One of the Plaintiff’s experts estimated that the Plaintiff’s cost of care was extremely high: $936,669.00.
Accordingly, the Plaintiff’s litigation guardian brought a Motion “requiring [the Defendant] to pay [the Plaintiff], in exchange for a partial discharge, an advance payment of specific damages in the amount of $500,000.00 to ensure coverage for specific damages incurred or to be incurred by [the Plaintiff] from January 29, 2020 until July 23, 2023” [para 4]. This was done pursuant to section 265.6 of the Insurance Act.
Justice Denise A. LeBlanc of the New Brunswick Court of Queen’s Bench ultimately allowed this Motion.
The Judge laid out the analysis how the Court comes to a decision on these matters. The analysis is comprised of two steps. Firstly, the Court investigates whether “there is a good chance that specific damages of the kind that are the subject of the [Motion] will be awarded in the context of the [final] judgment” [para 45]. During this phase, the Court looks at whether the Defendant owed and breached the requisite duty and standard of care. Secondly, the Court reviews whether the specific damages claimed by the Plaintiff “have a high probability or are likely to form part of the damages awarded at trial” [para 66]. During this step, the Court balances the amount against defenses brought up by the Defendant and applicable compensatory deductions (such as government benefits). The stronger the defenses brought up by the Defendant, the lower the Plaintiff’s claim sinks.
In this case, the analysis was straightforward. Regarding the first step, Justice LeBlanc found “that in the context of the final judgement, [the Defendant] will be indebted to [the Plaintiff] for specific damages of the kind covered by the came by the claim by Ms. Mathieu” [para 65]. Regarding the second step, the Defendant had no strong rebuttal to the Plaintiff’s claims. Thus, the Court ordered the Defendant to pay the Plaintiff $500,000 in specific damages.
