The intervention would not cause prejudice to the parties: court
The Ontario Court of Appeal has allowed the Ontario Trial Lawyers Association (OTLA) to intervene in a medical malpractice lawsuit on the issue of the appropriate prejudgment interest (PJI) rate for non-pecuniary damages.
In Henry v. Zaitlen, 2023 ONCA 740, OTLA brought a motion for leave to intervene as a friend of the court. The case stemmed from a medical malpractice jury trial in which the plaintiffs were successful. The trial judge's decision included the appropriate PJI rate for non-pecuniary damages.
The plaintiffs appealed, arguing that the trial judge committed an error by departing from the presumptive PJI rate on damages for non-pecuniary loss in an action for personal injury. The defendant, Dr. Marshall Zaitlen, also appealed the liability decision.
OTAL sought leave to intervene in the plaintiff's appeal on the PJI issue. The plaintiffs consented to OTLA's intervention, while Dr. Zaitlen opposed it.
The Ontario Court of Appeal explained that in determining whether OTLA should be granted intervention, the court must consider the general nature of the case, the issues that arose, and the contribution that the intervener could make to those issues without doing injustice to the parties.
The court acknowledged that interventions in appeals involving a private dispute must generally meet a more stringent standard. Still, the court also said that this standard is "somewhat softened" where issues of public importance arise.
While the case involved a private dispute, the court was satisfied that the issue on appeal involved broader considerations that transcended the conflict between the parties and engaged with the broader public interest. The court pointed out that the appeal raised how trial judges should exercise discretion when changing the statutory PJI rate for non-pecuniary loss.
The court recognized that OTLA is a province-wide association of lawyers who practice personal injury and medical malpractice litigation throughout Ontario. It is a well-recognized group with expertise in representing injured Ontarians and is often granted intervention status.
Dr. Zaitlen opposed OTLA's intervention, arguing that its proposed submissions raised new issues on appeal, resulting in the need to supplement the record with further evidence.
The court agreed with Dr. Zaitlen that OTLA's proposed submission related to the issue of notice would improperly expand the scope of appeal. OTAL proposed to argue that adequate notice must be provided by a party seeking a rate other than the presumptive five percent PJI rate. The court said that since the plaintiffs did not raise a ground of procedural unfairness in their notice of appeal, OTLA's submissions on the subject of adequate notice would improperly expand the scope of the appeal.
Nonetheless, the court found that OTLA's proposed submissions on the analytical framework for trial judges, when exercising their discretion to change the PJI rate for nonpecuniary losses, would provide a valuable contribution without causing prejudice to the parties and would not expand the scope of the appeal.
OTLA's proposed submission states that the party seeking to displace the presumptive five percent PJI rate must meet a high evidentiary threshold, taking into account an understanding of compound versus simple interest and the legislative intent of the statutory scheme.
The court pointed out that OTLA did not inappropriately seek to introduce new evidence or to weigh in on the evidence raised on appeal. The court also said that OTLA's proposed submissions were not unduly duplicative of the plaintiff's submissions. The court was satisfied that OTLA's submissions on the evidentiary threshold would provide a fresh perspective by focussing on the analytical framework for departing from the five percent PJI rate. The court further said that OTAL's submissions were in contrast to the plaintiffs' factum, which focussed upon the fact-specific aspects of the appeal.
Accordingly, the court granted OTLA leave to intervene, allowing it to file an eight-page factum and giving a maximum of ten minutes for oral arguments.
