David Bierstone

This endorsement addresses the costs of two unsuccessful summary judgment motions brought by the Allan Star defendants and Ms. Samuel, which were dismissed due to genuine issues for trial regarding the plaintiff's credibility.

The plaintiffs sought $75,000 in partial indemnity costs, while the defendants proposed $30,000.

The court awarded the plaintiffs $55,000 in partial indemnity costs, payable two-thirds by the Allan Star defendants and one-third by Ms. Samuel.

The decision considered factors under Rule 57.01, including the result, stakes, complexity, parties' conduct, and the reasonable expectations of costs, noting that the defendants' own costs outlines were an objective indicator of what they could expect to pay.

The plaintiffs, George MacPherson and his minor daughter Sierra, brought an action for damages after George MacPherson suffered a serious back injury falling from a roof.

The defendants, including the homeowner (Samuel) and roofing contractors (Allan Star Roofing Ltd. and Ebrahim Khezri), moved for summary judgment to dismiss the claims against them.

The court dismissed both summary judgment motions, finding that genuine issues requiring a trial existed, particularly concerning witness credibility regarding the provision of safety equipment and knowledge of unsafe conditions.

The court emphasized that it was not in the interest of justice to grant partial summary judgment due to the risk of duplicative proceedings and inconsistent factual findings, especially given the presence of a jury notice.

The defendant insurer, Compagnie d'Assurance Traders Generale ("Traders"), brought a motion for summary judgment seeking a declaration that Justin Gough operated Nancy Gough's vehicle with implied consent, thereby making Nancy vicariously liable under the Highway Traffic Act and negating the plaintiff's uninsured automobile claim against Traders.

The court dismissed the motion, holding that "consent" under s. 192(2) of the Highway Traffic Act requires a positive conferral of permission to possess the vehicle, not merely a failure to prevent unauthorized use.

The evidence showed no express or implied consent for Justin to drive the vehicle, as his license was suspended, and he took the keys without permission.

The appellant appealed a motion judge's decision dismissing his motion for an extension of time to serve a Third Party Claim on Rosa Cavallo nunc pro tunc and for validation of service based on the pleading coming to her attention.

The appellant had issued the Third Party Claim alleging that foliage on the Cavallos' property created a hazard to motorists.

Rosa had moved to Italy and her whereabouts were unknown.

The motion judge dismissed the motion, finding the evidence regarding service attempts was unreliable hearsay and that the pleading had not come to Rosa's attention.

The motion judge also refused to dispense with personal service, noting the potential liability far exceeded the policy limits and the case was weak.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's conclusions regarding the hearsay evidence and the requirements of the Rules of Civil Procedure.

The defendants sought leave to appeal an order refusing their motion for summary judgment regarding a building loss claim.

The motions judge had concluded that summary judgment was not a proportionate means to achieve a just result, as the claim involved issues requiring the weighing of evidence and assessment of credibility, including the application of a covenant to insure.

The Divisional Court dismissed the motion for leave to appeal, finding that the moving parties failed to satisfy either branch of the test under Rule 62.02(4) of the Rules of Civil Procedure.

The court issued a supplementary costs endorsement to clarify a previous costs award of $7,500 to the third parties following the dismissal of the defendant's motion to validate service.

The court clarified that the third parties had only sought costs for the motion before this judge, and not for a prior 2014 motion before a different judge.

The original costs award of $7,500 was maintained as fair and reasonable.

The Third Parties (Estate of Francesco Cavallo and Rosa Cavallo) sought partial indemnity costs after successfully dismissing the Defendant's motion for validation of service.

The court awarded $7,500 in costs to the Third Parties, finding their initial request of $12,089.03 excessive as it included costs incurred from a prior hearing before a different judge who had made no order as to costs.

The court emphasized that awarding such costs would effectively overrule the prior decision.

The defendant in a motor vehicle accident claim brought a third-party claim against homeowners, alleging their trees obstructed his view of the plaintiff cyclist.

The defendant attempted to serve one of the homeowners, who had moved to Italy, by leaving the claim at a suspected address.

The defendant moved to validate service under Rule 16.08.

The court dismissed the motion, finding the hearsay evidence of the private investigators insufficient to prove the claim had come to the homeowner's attention, especially given the potential prejudice of a claim exceeding her insurance limits.

The tenant defendants sought summary judgment dismissing a landlord’s claim for damages arising from a fire, arguing that a lease covenant requiring the landlord to maintain property insurance barred any claim against the tenants even if the loss resulted from tenant negligence.

The landlords opposed the motion, asserting that the tenants had failed to maintain the premises’ fire sprinkler system and had disabled it prior to the fire, and that multiple parties and related proceedings made summary determination inappropriate.

The court held that the circumstances raised factual issues, including credibility disputes and questions regarding the conduct surrounding the disabled sprinkler system and the scope of parties bound by the lease.

Given the multiplicity of parties and risk of inconsistent findings, the motion judge found summary judgment inappropriate.

The motion was dismissed and the matter left for trial with the other related proceedings.

Third parties in a catastrophic personal injury action moved to set aside a defence filed on their behalf by their insurer’s counsel after the insurer mistakenly assumed the insured had been served with the third party claim.

In fact, the third party claim had never been personally served on the insured homeowner who had relocated abroad.

The court considered Rules 16.01(2), 1.04, 2.01, and 3.02 of the Rules of Civil Procedure and held that the deemed service rule should not apply where the defence was filed based on a mistaken assumption of service.

Emphasizing that procedural rules should not allow form to triumph over substance, the court set aside the defence and granted the defendant six months to attempt personal service of the third party claim.

The plaintiff's action arising from a motor vehicle accident was administratively dismissed for delay under Rule 48.14.

The status notice and dismissal order were sent to the plaintiff's former counsel due to a court error, despite a notice of change of solicitor having been filed.

The motion judge dismissed the plaintiff's motion to set aside the dismissal, finding unexplained delay, prejudice to the defendants, and relying on the principle of finality.

The Court of Appeal allowed the appeal, holding that the motion judge made palpable and overriding errors in her assessment of the delay, prejudice, and finality, particularly given the defendants' continued participation in discoveries for a related action.

The self-represented appellant's personal injury action was dismissed by the trial judge on his own motion before the appellant's evidence-in-chief was completed, on the basis that the evidence was incoherent.

The Court of Appeal allowed the appeal, finding that while a trial court has inherent jurisdiction to control its own process, this does not extend to dismissing cases without hearing the available evidence and submissions.

The appellant's right to a fair trial was denied.

The appellant appealed a jury verdict finding the respondents not liable for injuries he suffered after falling on their property.

The appellant argued the verdict was perverse due to inflammatory comments by defence counsel and evidence showing the respondents failed to meet the standard of care.

The Court of Appeal dismissed the appeal, finding the trial judge adequately corrected any inflammatory remarks in her charge to the jury, to which the appellant did not object.

The Court also found there was evidence to support the jury's verdict and no palpable and overriding error was committed.