Gary L. Petker

Following an appeal that reduced the respondent's trial judgment to $25,000, the appellant sought to deprive the respondent of trial costs under former Rule 76.10, arguing the action should have been brought under the simplified procedure.

The Court of Appeal held that it was reasonable for the respondent to have commenced and continued the action under the ordinary procedure, as the original claim was for $70,000 based on bona fide estimates and the trial award was $54,980.34.

The trial costs award was not disturbed.

The appellant appealed a trial judgment awarding the respondent $54,980.34 for the cost of replacing an entire swimming pool structure due to defective workmanship.

The Court of Appeal found the trial judge erred by awarding replacement costs when the evidence indicated the pool was structurally sound and only required repairs to the retaining walls and decking.

The Court held that awarding a new pool would provide a substantial gratuitous benefit.

The appeal was allowed, and damages were reduced to $25,000.

The appellant appealed a trial judgment setting aside a separation agreement and determining net family property.

The Court of Appeal found no error in the trial judge's conclusions that the respondent lacked capacity to sign the agreement, that its terms were unconscionable, and that it was signed under duress.

The court also upheld the trial judge's valuation of net family property.

The appeal was dismissed.

On cross-appeal, the court upheld the denial of pre-judgment interest but allowed the cross-appeal regarding costs, awarding the respondent her costs at trial on a party and party basis because she recovered a judgment in excess of her offer.

The applicant was injured in a rear-end motor vehicle accident and received weekly income benefits for three years.

He applied for ongoing benefits, claiming physical and psychological disability prevented him from working.

The arbitrator found that while the applicant suffered a herniated disc from the accident, he exaggerated his symptoms and his psychological condition was caused by pre-existing and psycho-social factors unrelated to the accident.

The arbitrator concluded the applicant retained the capacity and skills for suitable employment, such as a retail clerk or in construction trades, and dismissed the claim for ongoing benefits.