E. Eva Frank

Following a successful appeal that dismissed the plaintiff's action due to a five-year delay, the appellant sought partial indemnity costs for the motion for leave and the appeal.

The respondent opposed the costs award, arguing impecuniosity and blaming his former solicitor for the delay.

The Divisional Court rejected the respondent's arguments, finding that a costs award was appropriate.

The court fixed the costs payable to the appellant at $7,500 all-inclusive, considering the overall reasonableness of the amount.

The plaintiff's action was struck from the trial list after he failed to attend the trial.

Five years later, a motion judge restored the action, applying the test for dismissal for delay.

The defendant appealed.

The Divisional Court allowed the appeal, finding the motion judge erred in principle by not applying the test for setting aside a judgment for failure to attend trial, which requires the plaintiff to explain the failure to attend, explain the delay in seeking relief, and demonstrate that the action has merit.

Given the plaintiff's unexplained five-year delay and lack of evidence showing merit, the appeal was allowed and the action dismissed.

The applicant defendant sought leave to appeal an interlocutory order that revived the plaintiff's action, which had been dismissed five years prior due to the plaintiff's failure to attend trial.

The Divisional Court granted leave to appeal, finding that the motions judge's application of the test for dismissal for delay, rather than the test for setting aside a default judgment, was open to serious debate.

The court also found that clarifying the proper criteria for reviving moribund lawsuits was a matter of general public importance.

The appellant solicitor was called to a hospital to prepare a deathbed will for a terminally ill patient.

After interviewing the patient, who drifted in and out of consciousness, the solicitor concluded the patient lacked testamentary capacity and declined to prepare the will.

The patient died intestate.

A prospective beneficiary sued the solicitor for negligence and succeeded at trial.

On appeal, the Court of Appeal allowed the appeal, holding that the solicitor's duty was to ascertain testamentary capacity.

Finding the patient lacked capacity, the solicitor properly declined the retainer.

In the absence of a retainer, the solicitor owed no duty of care to the prospective beneficiary.

The appellants, operators of a group home, appealed a civil jury verdict that found them 80% liable and the Children's Aid Society 20% liable for severe frostbite injuries suffered by a developmentally challenged student who went absent without leave from his high school.

The jury found the school board 0% liable.

The Court of Appeal dismissed the appeal, holding that the jury's finding of no negligence by the school board was supported by the evidence, particularly the appellants' failure to communicate prior runaway incidents to the school.

The court found no palpable and overriding error to justify interfering with the jury's apportionment of liability.