Change in Pre- Judgment Interest: Retroactive or Not?
We blogged about the change in the pre-judgment interest rate in March and April of this year. As of January 1, 2015, the Insurance Act was amended to provide that the 5% pre-judgment rate set out in the Rules of Civil Procedure does not apply in motor vehicle accident cases. As a result, pre-judgment interest on general or non-pecuniary damages in motor vehicle accident cases will now be based on the rate that applies to all other damages. That rate is presently 1.0%.
In a recent Ottawa case that is apparently now on its way to the Court of Appeal, Justice Toscano-Roccamo held that the reasoning of the Judge in Cirillo v. Rizzo (which held that the change in rates applied retroactively to accidents before January 1, 2015) was not persuasive and that both entitlement to pre-judgment interest and the specific rate at which interest was calculated was a substantive right that could not be interfered with in a retroactive fashion in the absence of specific statutory language providing the change was to be applied retroactively. Thus, according to her Honour the change in the interest rate should apply prospectively and only affect persons injured in motor vehicle accidents that occurred after January 1, 2015.
We will have to await the decision of the Court of Appeal for Ontario for a final determination of this question.