Barry A. Percival

The plaintiffs brought a motion seeking court approval of a settlement in a personal injury action involving a minor plaintiff arising from a motor vehicle collision.

The settlement resolved claims against several municipal defendants responsible for roadway maintenance and resulted in dismissal of the action, including related third party claims.

Third parties opposed the settlement on the basis that they wished the municipality to remain in the litigation, but the court held they had previously chosen not to advance a third party claim and had provided no sufficient basis to reject the settlement.

After reviewing the supporting materials and affidavits, the court concluded the settlement was reasonable and in the best interests of the minor plaintiff.

The settlement was therefore approved and the action dismissed as against the settling parties.

Following a jury verdict in a pedestrian–motor vehicle accident action, the court was asked to determine the quantum and apportionment of the successful plaintiff’s costs.

The uninsured driver was found 70 per cent liable, a commercial host 5 per cent liable, and the plaintiff 25 per cent contributorily negligent.

The plaintiff’s insurer defended the action under uninsured and underinsured coverage.

The court exercised its discretion under s. 131 of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure to fix costs at $635,500 on a partial indemnity basis and ordered that the costs be borne equally by the commercial host and the insurer.

The court held that strict apportionment based on liability percentages was inappropriate in the circumstances and that fairness justified an equal allocation.

Following a lengthy condominium dispute trial involving claims of solicitor negligence, construction defects, and condominium governance issues, the court addressed the allocation of costs among multiple parties.

The plaintiff succeeded against the solicitor defendant but failed against several other defendants, including the condominium corporation and property management company.

Applying the principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed reasonable expectations, proportionality, litigation conduct, and Rule 49 settlement offers.

The court issued a Sanderson order requiring the negligent solicitor defendant to pay the costs of the successful condominium defendant, while also apportioning part of the successful property manager’s costs between the plaintiff and the solicitor defendant.

Substantial costs awards were fixed reflecting the complexity and length of the litigation.

Following a complex insurance dispute involving alleged arson and the destruction of artwork, the court determined the appropriate costs payable by the insurer to the plaintiff after two trials.

The court reviewed legal fees from multiple law firms and reduced several claimed amounts where work was unrelated to the litigation or where hourly rates were excessive for counsel’s level of experience.

Expert witness fees for an appraisal report valuing destroyed artwork were also scrutinized, with the court reducing the claimed preparation time and attributing only two‑thirds of the report’s cost to the litigation because part of the work related to the insurance proof of loss requirement.

The court rejected a claim for contractual interest of 2% per month on the expert’s fees but awarded prejudgment interest at the average annual statutory rate.

The defendant’s partial success on a punitive damages claim did not justify a reduction in the plaintiff’s costs.

The appellant municipality appealed a trial judgment awarding damages to the respondent for injuries sustained after slipping on an icy patch in a laneway.

The trial judge found the laneway was used as both a vehicular roadway and a pedestrian passageway, and applied the gross negligence standard applicable to sidewalks.

The Court of Appeal found no error in the trial judge's approach or his finding of gross negligence, and dismissed the appeal.

The appellants appealed the dismissal of their action seeking declarations that the respondent insurer was obliged to defend and indemnify the Ministry of Transportation (MTO) in litigation arising from a construction accident.

The Court of Appeal dismissed the appeal, finding that the insurance certificate and policy only covered the MTO for vicarious liability arising from the contractor's acts, not for the MTO's own negligence.

The court also noted that the appellants' delay of over eight years in advancing the claim prejudiced the respondent.

Following an appeal that ordered a new trial restricted to the respondent's proof of loss for her fine arts collection, the parties made written submissions on costs and the scope of the new trial.

The Court of Appeal clarified that the new trial is restricted to the fine arts collection proof of loss and that the trial judge may consider punitive damages and section 129 of the Insurance Act.

The appellant, having been successful in obtaining a new trial, was awarded costs of the appeal fixed at $50,000 on a partial indemnity scale.

The respondent's home was destroyed by fire, and she claimed against her insurer, the appellant, for the loss of the home, contents, jewelry, and a large fine art collection.

The insurer denied coverage, alleging arson and material misrepresentation in both the application and the proof of loss.

The trial judge rejected the insurer's defences and awarded over $4.5 million in damages plus punitive damages.

On appeal, the Court of Appeal upheld the trial judge's findings on the application misrepresentation and the application of s. 124 of the Insurance Act to the insurance binder.

However, the Court allowed the appeal and ordered a new trial restricted to the proof of loss, finding that the trial judge committed reversible error by failing to explain how he resolved significant credibility issues regarding the respondent's evidence of her fine art losses.

The appellants were injured when an elevator in the respondents' building malfunctioned and dropped several floors.

At trial, a jury found against the appellants on liability, accepting the defence theory that the malfunction was likely caused by the occupants' misbehaviour.

The appellants appealed, arguing the trial judge erred in her jury instructions regarding the review of evidence, adverse inferences for an uncalled witness, and the burden of proof, as well as in an evidentiary ruling restricting their expert's testimony.

The Court of Appeal dismissed the appeal, finding no reversible errors in the jury charge or the evidentiary ruling.

The infant plaintiff was severely injured when a fence on the appellant's premises fell on him.

A jury awarded approximately $3 million in damages, apportioning liability 95% to the appellant and 5% to the fence installer.

The appellant appealed the apportionment, arguing the trial judge erred in admitting a statement from a deceased employee of the installer and failing to caution the jury on its use.

The Court of Appeal dismissed the appeal, finding no substantial wrong or miscarriage of justice, as the jury's reasons for liability focused on the appellant's failure to rectify the fence after it had fallen on three prior occasions, without relying on the disputed statement.

The appellant mother purchased a used pool slide and asked the respondent pool store if it was 'okay' to install it on her 4-foot-deep aboveground pool.

The store employees assured her there would be 'no problem' but failed to warn her of the risk of catastrophic injury if the slide was used improperly in shallow water.

The appellant daughter used the slide, entered the water head first, and was rendered quadriplegic.

The Court of Appeal allowed the appeal, finding the pool store breached its duty of care by failing to warn of the non-obvious danger, and that this failure caused the injury.

The daughter was found 20 per cent contributorily negligent for ignoring her mother's instructions to slide feet first.

The respondent and other companies sued the appellant and other parties for defects in concrete used to build houses.

The respondent obtained summary judgment against the appellant on the contract claim for 'hard costs' of rebuilding the homes.

The appellant appealed, arguing that summary judgment would not simplify the proceedings.

The Court of Appeal dismissed the appeal, finding the contract claim was discrete from the tort claims and raised no genuine issue for trial, and that the summary judgment significantly simplified the proceedings.

The respondent sued the appellant and other defendants for defects in concrete used to build houses.

The respondent obtained summary judgment against the appellant for breach of contract, including hard costs for rebuilding the homes.

The appellant appealed, arguing that summary judgment would not simplify the proceedings.

The Court of Appeal dismissed the appeal, finding that the contract claim was discrete from the tort claims and raised no genuine issue for trial, and that the summary judgment significantly simplified the proceedings.

The appellants appealed a trial judgment awarding damages for a brain injury sustained in a motor vehicle accident.

They argued the trial judge erred in relying on the opinion of a psychiatrist over other specialists who found no brain injury.

The Court of Appeal dismissed the appeal, holding that the expert was qualified to give the opinion and the trial judge made no palpable and overriding error in preferring it.

The court also upheld the trial judge's findings on lost income and the application of a tax gross-up on future care costs.

The infant plaintiff sustained catastrophic injuries when he rode his bicycle down a ramp at an apartment building owned by the appellant Turret Realties Inc. and into the path of a vehicle driven by the appellant Anne Busk.

The trial judge found Turret 50% liable under the Occupiers' Liability Act and the plaintiff 50% contributorily negligent, while dismissing claims against the driver.

Turret appealed on multiple grounds, including reasonable apprehension of bias, liability, and damages.

The plaintiff cross-appealed regarding contributory negligence, loss of interdependent relationship, and the refusal to award a management fee.

The Court of Appeal dismissed the main appeal and allowed the cross-appeal in part, awarding a management fee of $302,989 and adjusting the tax gross-up accordingly.

The appellants appealed a trial judgment finding that the appellant DeMarco failed to account for trust funds while acting in a fiduciary capacity.

The appellant conceded he acted in a fiduciary capacity but argued his failure to account was due to incompetence and negligence, not wrongdoing under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, holding that the trial judge's finding that the appellant failed to adequately discharge his onus as a trustee to account for the trust funds was sufficient to trigger s. 178(1)(d).

The appellants appealed the trial judge's apportionment of liability, assessment of damages, and costs awards arising from a tragic apartment fire that caused severe smoke inhalation injuries to the respondents.

The trial judge had apportioned liability 10% to the tenant who started the fire, 20% to the City for failing to enforce building codes regarding self-closing doors, and 70% to the building owners/managers.

The Court of Appeal reapportioned liability to 20% for the tenant, 35% for the City, and 45% for the owners, finding the trial judge underestimated the tenant's and City's roles.

The Court upheld the general damages and future loss of income awards, as well as the future care costs based on the injured respondent's choice to live independently.

The Court also largely upheld the substantial indemnity costs award and premium against the owners due to their failure to admit liability, but varied the costs related to a separate medical malpractice action and an inquest.

The plaintiffs suffered severe injuries from smoke inhalation during an apartment fire.

The trial judge found the tenant who started the fire, the building owner, and the City liable, apportioning fault at 10%, 70%, and 20% respectively.

The trial judge also awarded substantial damages and substantial indemnity costs with a premium.

On appeal, the Court of Appeal reapportioned liability to 20% for the tenant, 45% for the owner, and 35% for the City, finding the trial judge underestimated the tenant's and City's roles.

The damage awards were upheld as reasonable.

The costs award was largely upheld, except for costs related to a separate medical malpractice action and an inquest.

The appellant jewellery store was robbed, but its video surveillance system failed to record the event due to an employee's error in operating the VCR.

The respondent insurer denied coverage, relying on a warranties endorsement requiring the system to be operational at all times insofar as it was within the Named Insured's control.

The trial judge dismissed the action, finding the employer responsible for the employee's failure.

The Court of Appeal allowed the appeal, holding that the endorsement distinguished between the 'Named Insured' and its employees, and that the insured had satisfied its obligation by instituting a reasonably fail-safe procedure.

The appellant appealed a trial judgment regarding liability for a fire.

The trial judge found that the appellant's failure to hook up a high limit switch and failure to warn the respondent of installation problems were material causes of the fire.

The Court of Appeal found no error in the trial judge's analysis of causation or apportionment of liability and dismissed the appeal, awarding costs of $15,000 to the respondent.