Chesher v. Monaghan

Chesher v. Monaghan

The Court of Appeal affirmed the trial judge's refusal to convert the award to a structured periodic payment because under s.116 the court must order periodic payments only if they are in the plaintiff's best interests given all circumstances; here the plaintiff's credible financial plan, the material reduction in...

Source-derived case information.

Citation
C32618
Parties
Plaintiff/respondent: William Chesher; Plaintiff/respondent: Lisa Chesher; Defendant/appellant: Michael Monaghan
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
19 May 2000
Procedural Posture
Personal Injury Appeal (medical Malpractice) / Appeal to Court of Appeal From Trial Judgment and From Dismissal of Defendant's Motion for Structured Periodic Payments Under S.116 Courts of Justice Act
Outcome
Appeal dismissed with costs to the plaintiffs/respondents
Legal Topics
Section 116 Courts of Justice Act, Structured Settlement, Gross Up for Tax on Investment Income, Future Care Costs, Best Interests Test, Discount Rate (rule 53.09)
Source Language
english
Personal Injury Tort Law Civil Procedure Insurance Law Damages Statutory Interpretation Section 116 Courts of Justice Act Structured Settlement +4 more

Source-derived case record

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Parties

William Chesher

Plaintiff/respondent

Lisa Chesher

Plaintiff/respondent

Michael Monaghan

Defendant/appellant

Procedural Posture

Personal Injury Appeal (medical Malpractice) / Appeal to Court of Appeal From Trial Judgment and From Dismissal of Defendant's Motion for Structured Periodic Payments Under S.116 Courts of Justice Act

Legal Issues

  1. 1 Whether plaintiff's proposed plan for use of award is restricted to the head of future care damages
  2. 2 Whether plaintiff's financial plan required close scrutiny where background negates dissipation risk
  3. 3 Whether lack of a guaranteed period in the proposed structure justified refusal

Ratio Decidendi

The Court of Appeal affirmed the trial judge's refusal to convert the award to a structured periodic payment because under s.116 the court must order periodic payments only if they are in the plaintiff's best interests given all circumstances; here the plaintiff's credible financial plan, the material reduction in immediate cash under the defendant's proposal, the proposal's lack of guarantees, limited indexation tied to CPI and structural inflexibility justified refusing the defendant's offer; trial judge did not err procedurally in declining to re-craft the defendant's proposal and the appeal is dismissed.

Court Disposition

Appeal dismissed with costs to the plaintiffs/respondents

Orders

  • Appeal dismissed with costs to the plaintiffs