MacLeod v. Marshall, 2019 ONCA 842

The Basilian Fathers of Toronto appealed the jury verdict in this historical sexual abuse case, as well as an order for prejudgment interest. The Basilians argued that the jury instruction on how to assess damages for past loss of income was wrong, the punitive damages award was excessive, and prejudgment interest ought not to have been awarded at the rate of 5%. The Court of Appeal held that the legal instruction given to the jurors to determine entitlement and quantum of damages for loss of income contained no reversible error; the instruction in respect of punitive damages contained no error and the damages awarded were not so excessive as to call for intervention; and the trial judge erred with respect to prejudgment interest. The trial judge reasoned that 5% is the default rate where s. 258.3(8.1) of the Insurance Act does not apply. The Court of Appeal held that while the Insurance Act did not apply in this case, the conclusion that 5% is the default prejudgment interest rate is not correct in law. The trial judge should have taken into account the factors listed in s.130(2) of the Courts of Justice Act. The Court of Appeal held that the annual prejudgment interest rate should have been 1.3% and varied the judgment accordingly.