D. Keith Smockum

The plaintiff, Anupam Dhar, was awarded damages of $365,000 after a motor vehicle accident trial.

This decision addresses the costs.

Dhar sought partial indemnity costs up to his Rule 49 offer ($350,000) and substantial indemnity costs thereafter, as the judgment was more favourable.

The defendants, McGuinness, argued against Rule 49 consequences due to the complex liability apportionment (10% McGuinness, 90% unidentified motorist, but McGuinness 100% liable to Dhar due to insurance regulation).

The court found Dhar entitled to costs, applying Rule 49 consequences, but reduced the quantum of fees due to excessive time spent by plaintiff's counsel.

The defendant appealed a Small Claims Court judgment finding it negligent under the Occupiers’ Liability Act after a customer entered an open service bay and was injured when a trailer moved as he attempted to steady himself while feeling ill.

The appeal argued the trial judge erred in law in concluding the occupier breached its duty of care.

The court held that findings regarding the standard of care and breach involved questions of mixed fact and law entitled to deference absent palpable and overriding error.

The trial judge’s inference that the occupier knew of the danger posed by the easily moveable trailer positioned near an open garage entrance was reasonably supported by the evidence.

No legal error or misapplication of the statutory duty of care was established.