Aubin v. Synagogue and Jewish Community Centre of Ottawa
This page is a summary and commentary on a publicly available court decision, written for general informational and educational purposes only. It is not legal advice and does not create a lawyer-client relationship with Azimi Law, regardless of how specific or applicable it may seem to your situation.
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The Facts
The plaintiff fell at the Soloway Jewish Community Centre in Ottawa in 2015 and suffered a serious head injury. She and a family member sued the Centre and related defendants, and a jury assessed damages in her favour. The argument on appeal was about interest, not liability. Under the Courts of Justice Act, prejudgment interest on non-pecuniary damages in this kind of case is presumed to run at 5% a year, but the court may change the rate if it is just to do so. After the verdict, the trial judge cut the rate to 1.3% on non-pecuniary damages and 0.8% on past pecuniary loss, reasoning mainly from low market interest rates and inflation figures. The plaintiff had asked for a higher rate, backed by evidence that money invested from the date of the injury would have earned about 8.46%, along with evidence of the high returns the defendants' insurer had earned over the same years. The plaintiff appealed the interest ruling.
What the Court Decided
Justice Roberts, writing for a unanimous panel, allowed the appeal and fixed prejudgment interest at 8.46%. The Court restated the approach: 5% is the starting point for non-pecuniary damages, the person asking to depart from it carries the burden, and a departure needs unusual or special circumstances measured against all of the factors in section 130(2), including the circumstances of the case. The trial judge had looked too narrowly at market rates and had treated an inflation index as though it measured market interest rates without evidence connecting the two. The purpose of prejudgment interest is to compensate the plaintiff for being kept out of the money and to discourage delay, and evidence of what the plaintiff's own investments, and the insurer's, would have earned was relevant to that purpose. On the Court's reasoning, simple interest at the presumptive rate does not overcompensate a plaintiff who would have earned compound returns. In the companion decision, Henry v. Zaitlen, 2024 ONCA 614, the same panel restored the 5% rate for a medical negligence plaintiff whose trial judge had lowered it to 1.3%, adding that concern about overcompensation alone does not justify leaving the presumption behind. The Supreme Court of Canada refused leave to appeal in Aubin in March 2025.
Prejudgment interest can add a large sum to an award in an older case, and some trial judges had been cutting it back because market rates were low. This decision tells them that the rate is a legislated starting point, and that a departure needs evidence and a full weighing of the statutory factors. It is also a reminder that a plaintiff who wants a higher rate must put evidence of investment returns in front of the court. The 5% presumption discussed here concerns non-pecuniary damages in cases other than motor vehicle claims, which are handled under a different framework.
Does This Affect You?
- ✓You were injured in a fall or other non-vehicle incident and your lawsuit has been going on for several years.
- ✓You are trying to understand how much interest will be added to a damages award or settlement.
- ✓You were hurt through medical negligence and want to know how the date of the injury affects the final number.
Key Takeaways
- For non-pecuniary damages in a non-motor-vehicle injury case, 5% a year is the presumptive prejudgment interest rate.
- A court may depart from that rate only for unusual or special reasons, after considering every statutory factor, and the party asking for the change carries the burden.
- Evidence of what the plaintiff's investments, or the insurer's, would have earned can support a higher rate.