Barry A. Percival

The appellants brought a motion seeking an order to carry the Court of Appeal's order of September 19, 2017 into operation.

The Court of Appeal determined that the motion could not properly be characterized as an order under Rule 59.06(1)(c).

The dispute underlying the motion arose from the terms of the Minutes of Settlement and involved a question of contractual interpretation, which the Court found was properly resolved through a proceeding in the Superior Court of Justice rather than through the appellate motion process.

The motion was dismissed with costs awarded to the respondents.

This is a costs decision on appeal from a trial judgment concerning liability for damages arising from an accident.

The appellants sought to challenge the trial judge's costs award.

The Court of Appeal determined that liability should be apportioned two-thirds to Safranyos and one-third to Hamilton.

The court made a Sanderson order requiring Safranyos to pay one-third of McHugh's costs of trial and appeal, but declined to impose such an order against Hamilton, as Hamilton made no arguments relating to McHugh's liability at trial or on appeal.

A motor vehicle collision occurred at an intersection in Hamilton when a vehicle operated by Ms. Safranyos failed to yield the right-of-way and was struck by a vehicle operated by Mr. McHugh, who had consumed alcohol and was speeding.

The trial judge found all three defendants liable: Ms. Safranyos at 50%, Mr. McHugh at 25%, and the City of Hamilton at 25%.

The City appealed on grounds that the trial judge misapplied the non-repair standard and improperly used adverse inferences.

Mr. McHugh appealed on grounds that the trial judge erred in finding he could have avoided the collision and misused evidence regarding his intoxication.

The Court of Appeal dismissed the City's appeal but allowed Mr. McHugh's appeal, finding the trial judge committed palpable and overriding errors in her factual findings and legal analysis regarding Mr. McHugh's liability.

Following a four-week trial where the plaintiff was awarded over $7 million for a traumatic brain injury sustained after jumping from a moving school bus, the court determined the costs payable by the defendant.

The court awarded partial indemnity costs up to the date of the plaintiffs' offer to settle, and substantial indemnity costs thereafter.

The court adjusted the 2005 Costs Grid for inflation to determine appropriate hourly rates for counsel.

In assessing disbursements, the court reduced several expert witness fees because the plaintiffs failed to provide sufficient information regarding the experts' hourly rates and time spent.

The court also disallowed the premium for adverse costs insurance, finding it was not a compensable disbursement as it did not advance the litigation.

Total costs of $741,266.08 were awarded to the plaintiffs.

The respondent brought an unsuccessful motion for reconsideration in writing.

The court awarded costs to the responding parties, rejecting the moving party's argument that costs should be modest because the motion was made in writing.

The court found that the 18.6 hours spent by counsel responding to the motion was reasonable, as the motion required a review of materials filed on the appeal and arguments made at the hearing.

Costs were fixed at $8,249, inclusive of disbursements and HST.

The moving party sought an order to withdraw the Court of Appeal's reasons for decision dated September 19, 2017, and to grant a rehearing before a five-judge panel, or alternatively, to stay the decision pending determination of related appeals.

The moving party argued that the Court had effectively overruled Bannon v. Hagerman Estate without notice and had addressed a new issue regarding the Ontario Drug Benefit Program that was not raised by the parties.

The Court dismissed the motion, finding that it had not overruled Bannon but rather distinguished it on its facts, and that the Ontario Drug Benefit Program issue had been squarely addressed by both parties during the appeal.

This is a costs endorsement following a successful appeal by the defendants.

The appellants sought partial indemnity costs of $56,676.40, which reflected their full indemnity rate.

The respondent argued for a significant reduction, contending that the court's decision had changed the legal landscape in personal injury litigation.

The court reduced the costs award to $30,000 inclusive of disbursements and HST, reflecting a partial indemnity rate and accounting for the complexity of the issues involved.

Appeal from a jury trial judgment in a catastrophic motor vehicle accident case.

The appellants challenged five rulings by the trial judge regarding prejudgment interest, assignment of statutory accident benefits (SABs), and treatment of collateral benefits.

The Court of Appeal allowed the appeal in part, reducing the prejudgment interest rate from 5% to 2.5%, amending the retirement age for income replacement benefit assignment from age 60 to age 64, and ordering assignment of future SABs for medication, assistive devices, and professional services.

The court declined to order assignment of drug benefits after age 65 due to the Ontario Drug Benefit Program, but found the trial judge erred in treating this as a contingency rather than a certainty.

The estate of a deceased tenant brought an action in Superior Court for $500,000 in damages for injuries suffered when the deceased allegedly slipped and fell over a damaged carpet in a residential rental unit.

The motion judge dismissed the action, concluding the Superior Court lacked jurisdiction because the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board and was outside the one-year limitation period prescribed under the Residential Tenancies Act, 2006.

The Court of Appeal allowed the appeal, holding that the Act does not grant the board exclusive jurisdiction over all claims of non-repair.

Where damages exceed the board's monetary jurisdiction, a party may commence proceedings in Superior Court.

Additionally, the one-year limitation period for board applications does not apply to Superior Court actions for non-repair; instead, the two-year limitation period under the Limitations Act, 2002 applies.

The Court of Appeal remitted the issue of whether a condominium corporation (MTCC 1056) was entitled to be indemnified by its property manager (Brookfield) for costs arising from a negligent estoppel certificate.

The property manager had been found negligent in preparing the certificate, making the condominium corporation vicariously liable to the plaintiff.

The court held that an implied right of indemnity exists at common law for a principal found vicariously liable for its agent's negligence.

Brookfield was ordered to indemnify MTCC 1056 for the costs paid to the plaintiff and the costs of the trial and appeal.

The court determined pre-judgment interest and costs following a jury verdict in a personal injury action.

Pre-judgment interest on general damages was reduced from 14 to 10 years due to plaintiff-occasioned delays.

The applicable rate for past loss of income was confirmed at 2.8%.

Plaintiffs were awarded partial indemnity costs to December 8, 2015, and substantial indemnity costs thereafter, totaling $727,290.00.

The defendant Upright, having made a better offer than the jury verdict, was awarded partial indemnity costs of $210,000.00 from the defendant Janandee.

The plaintiffs' costs were apportioned between the defendants based on their respective liability findings (Janandee 94%, Upright 6%).

The defendant Graham McKeddie moved for summary judgment to dismiss the claim against him, which was based on social host liability.

The plaintiff, a minor injured as a passenger in a car driven by Graham's son, supported the dismissal.

The defendant Echelon General Insurance Company, a party under uninsured/underinsured provisions, cross-claimed against Graham alleging social host liability.

The court applied the framework from Childs v. Desormeaux and the summary judgment principles from Hryniak v. Mauldin.

Despite conflicting evidence regarding the host's interaction with the guests, the court found insufficient evidence to establish a paternalistic relationship or any other basis for a positive duty of care on the host's part as a social host.

The motion for summary judgment was granted, dismissing the claim against the moving defendant.

The appellant, a secondary insurer, paid for a claimant's expensive prescription drug after the respondent, the primary insurer, denied coverage.

The appellant later sued the respondent for reimbursement.

The motion judge found the appellant's claim was partially statute-barred because it was discovered when the appellant first learned of the denial in October 2009.

The Court of Appeal reversed, holding that the appellant could not have reasonably discovered its claim until the respondent finally produced the policy wording in September 2011.

The appeal was allowed and the respondent was ordered to fully reimburse the appellant.

Following a jury verdict in a personal injury action arising from a motor vehicle accident, the court addressed supplementary issues concerning assignment of future Statutory Accident Benefits and the award of costs.

The defendants sought broad assignment of accident benefits to avoid alleged double recovery, arguing that the value of future benefits exceeded the verdict when compared with their settlement offer.

The court held that the defendants failed to meet the strict evidentiary burden required under the Insurance Act because the jury’s global awards did not specify the overlap between tort damages and accident benefits.

The court limited the assignment of income replacement benefits to a defined period and accepted assignments for certain other benefits where not disputed.

Costs were awarded to the plaintiff on a partial indemnity basis, fixed at $350,000 plus additional amounts for submissions and disbursements.

Following a jury verdict awarding damages for catastrophic injuries sustained in a motor vehicle accident, the court addressed outstanding issues concerning prejudgment interest, the retrospective application of amendments to the Insurance Act, the assignment and trust of collateral accident benefits, and costs.

The court held that the amendment removing the 5% prejudgment interest rate for non‑pecuniary damages in motor vehicle cases was substantive and therefore did not apply retrospectively.

Prejudgment interest on non‑pecuniary damages was awarded at 5% pursuant to the Rules of Civil Procedure.

The court also considered the statutory trust and assignment provisions governing future accident benefits and provided directions regarding potential assignments of benefits and further submissions.

Costs were to be determined following additional written submissions.

The plaintiff insurer sought summary judgment against the defendant insurer for equitable contribution and unjust enrichment regarding the costs of a life-saving drug, Soliris, paid on behalf of a mutual insured.

The defendant had initially denied coverage improperly.

The court found that the defendant was unjustly enriched and obligated to pay 90% of the drug costs as the primary insurer.

However, the court held that the plaintiff discovered the claim in October 2009, meaning claims for payments made more than two years before the action was commenced on April 4, 2012, were statute-barred.

Applying the principle that a new cause of action arises with each monthly payment, the court ordered the defendant to reimburse the plaintiff for all payments made after April 4, 2010.

The defendant sought leave to appeal an interlocutory order that bifurcated the trial into liability and damages phases.

The moving party argued that the bifurcation order conflicted with appellate jurisprudence, specifically the rule that a trial cannot be bifurcated without consent when a valid jury notice is in place.

The court found that there was a conflicting decision and good reason to doubt the correctness of the bifurcation order, satisfying the test for leave to appeal.

The motion for leave to appeal was granted.

Supplementary reasons addressing implementation and costs following an appeal decision regarding a condominium dispute.

The court ordered a trial of an issue to determine the difference in value between a two-storey and three-storey townhouse unit.

The court denied prejudgment interest on the valuation amount, finding the loss crystallized on the date of the appeal decision.

The court also allocated trial and appeal costs among the parties, applying modified Sanderson orders to account for successful and unsuccessful claims against various defendants.

In a judge and jury motor vehicle trial involving catastrophic injuries, the court considered whether future medication costs should be reduced to reflect potential public drug coverage available when the plaintiff turned 65.

Applying purposive statutory interpretation to s. 267.8(12)(a)(v) of the Insurance Act, the court held that ODBP coverage is not a 'payment' to which the plaintiff is entitled because no money or transferable value is delivered to the insured person.

As a result, any future ODBP benefit was not assignable to the defendants.

The jury was therefore entitled to consider possible future public drug coverage as a contingency in assessing future medication costs.

The appellant purchased a condominium townhouse advertised as three storeys, but later discovered the third floor was illegally built into the common element attic space.

She sued the condominium corporation, the property manager, her real estate lawyers, and the vendor.

The Court of Appeal held that the condominium corporation was liable for negligent misstatement for issuing a clean estoppel certificate despite the illegal third floor.

The court upheld the finding of solicitor negligence against the appellant's real estate lawyers for failing to review the vertical survey plans.

Damages were reassessed to compensate the appellant for the lost opportunity of owning a three-storey unit, and punitive damages against the vendor were upheld.