Graham Michael 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.

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.