Graham M. Bennett

This endorsement addresses costs and pre-judgment interest following a trial where the plaintiff was awarded $15,000 in non-pecuniary general damages and an OHIP subrogated claim for injuries sustained from a fall on an uneven sidewalk.

Despite the judgment amount falling within the Small Claims Court jurisdiction, the court declined to deprive the plaintiff of costs, citing the defendant's unreasonable litigation conduct and lack of meaningful settlement attempts.

The court fixed the plaintiff's costs at $15,000, inclusive of disbursements and HST, and pre-judgment interest on non-pecuniary damages at $1,350 (approximately 2.5%), noting both parties' disproportionate expenditure on the case.

The moving parties (defendants) brought a motion for leave to appeal the orders of Belobaba J. dated January 6, 2022.

The Divisional Court dismissed the motion for leave to appeal, with costs fixed at $5,000 payable to the Foodland plaintiffs.

Following an obstetrical malpractice trial where the jury found the defendant obstetrician 32% liable for the infant plaintiff's severe cerebral palsy, the defendant brought a motion under Rule 52.08 to dismiss the action or order a retrial.

The defendant argued the jury gave conflicting answers on causation and that there was no evidence to support their findings on the standard of care and delay in delivery.

The court dismissed the motion, finding the jury's use of the word 'contributed' did not conflict with the 'but for' causation test, and that there was ample expert evidence supporting the jury's conclusion that the defendant's failure to promptly prepare for an emergency c-section caused the infant's brain damage.

Judgment was ordered to be entered in accordance with the jury's verdict.

During an ongoing medical negligence trial involving a minor plaintiff who suffered severe brain damage at birth, the parties disputed the phrasing of the jury question on causation.

The plaintiffs argued for the phrase 'caused or contributed to', relying on recent jurisprudence involving multiple tortfeasors.

The defendant argued for the conventional 'but for' standard.

The court held that the factual matrix was not so confusing as to preclude the conventional 'but for' test, and ordered the jury questions to be phrased using the 'but for' standard.

The appellants appealed a jury verdict in a motor vehicle accident case, arguing the trial judge erred by charging the jury on both the 'but for' and 'material contribution' tests for causation.

The Court of Appeal agreed that charging on both tests was an error of law, as only one test applies.

However, the court found no substantial wrong or miscarriage of justice, as the trial judge's explanation of 'material contribution' effectively amounted to a further instruction on the 'but for' test.

The respondent's cross-appeal regarding the trial judge's guidance on the quantum of damages was also dismissed.

The appellants appealed a trial judgment awarding damages against them for failing to pay amounts owed under agreements for the purchase of an operating gravel pit.

The appellants argued they were induced to enter the agreements by oral warranties and promises made by the respondents, which were breached.

The Court of Appeal dismissed the appeal, deferring to the trial judge's factual findings that no such oral undertakings or warranties were made, noting the appellants were represented by experienced counsel and the alleged warranties were not included in the written documents.

The plaintiff sued a corporate tenant for breach of a commercial lease and its sole shareholder personally for inducing the breach.

The plaintiff also sued a subsequent purchaser of the tenant's assets for unjust enrichment and fraudulent conveyance.

The trial judge found the tenant and shareholder liable but dismissed the claims against the purchaser.

On appeal, the Court of Appeal reversed the finding of personal liability against the shareholder, holding that entering into two leases was not a tortious act outside the scope of his authority and did not justify piercing the corporate veil.

The plaintiff's cross-appeal regarding the purchaser was dismissed.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until they were terminated by the insurer.

She applied for ongoing weekly benefits under section 13 of the Schedule, claiming a substantial inability to perform her essential tasks as a student, parent, and homemaker due to soft tissue injuries, headaches, and depression.

The arbitrator found that while the applicant experienced a reduced level of functioning, she was able to resume her full-time studies and manage her household with some assistance, and therefore did not meet the test for substantial inability.

The claim for ongoing weekly benefits was dismissed, but the insurer was ordered to reimburse the applicant for chiropractic and medication expenses, and to provide further rehabilitation assistance.