Gregory P. McKenna

The Court of Appeal allowed Her Majesty the Queen's appeal, remitting the case for a new trial due to insufficient reasons from the lower court.

In this costs endorsement, the Crown sought $25,000 in appeal costs, while the respondents requested no costs.

The court awarded no costs for the appeal, citing the regrettable outcome of a new trial and the respondent's limited resources compared to the state.

The costs of the first trial were remitted to the judge hearing the new trial.

The respondent, an inmate in protective custody, was severely assaulted by other inmates.

The trial judge found the Crown liable in negligence for failing to protect him, assessing damages at an agreed $1.5 million.

The Crown appealed, arguing the trial judge erred by finding institution-level liability rather than identifying specific negligent acts by individual employees, as required by the Proceedings Against the Crown Act.

The Court of Appeal allowed the appeal and ordered a new trial, concluding that the trial judge's reasons were conclusory, failed to properly articulate the legal test for Crown liability, and were insufficient to permit meaningful appellate review.

This ruling addresses the issue of costs following a nine-day trial where Her Majesty the Queen in Right of Ontario was found liable to the plaintiffs, with Paul Bruno found 15% contributorily negligent.

The plaintiffs sought $407,074.81 in costs and disbursements, while the defendant proposed $166,365.99.

The court determined partial indemnity rates for counsel, made specific reductions for time spent on claims against dismissed defendants, resolved prior interlocutory motions, and travel time.

The court fixed fees at $210,900.00 plus HST, and disbursements at $105,000.00, for a total award of $343,317.00.

The court declined to reduce costs due to contributory negligence, finding the plaintiff's contribution minimal and not significantly increasing litigation costs or affecting settlement chances.

The plaintiffs brought a negligence action arising from a brutal assault on a vulnerable inmate in a provincial detention centre protective custody unit.

The court held that correctional staff fell below the standard of care by permitting three aggressive inmates with a known history of assaults and acting in concert to remain housed together, and by failing to make compatibility inquiries before placing the plaintiff in the unit.

Applying a but-for causation analysis, the court found the assault would not have occurred absent those failures.

The plaintiff was found contributorily negligent for not alerting staff upon seeing an inmate with whom he had prior conflict, and fault was apportioned at 15 percent against the plaintiff.

Liability was found against the Ministry, with damages already agreed and remaining issues deferred.

The plaintiffs, Christopher McCullough and Nicholas Nossey, along with their Family Law Act claimants, sued the Hamilton Police Services Board and individual officers for damages arising from malicious prosecution, false imprisonment, negligent investigation, and breach of Charter rights.

McCullough and Nossey were jointly charged with murder in 1990; Nossey was acquitted, and McCullough's conviction was set aside on appeal, with the Crown declining a new trial.

The court found that the police had objectively reasonable grounds for the arrests of both McCullough and Nossey, dismissing all claims for malicious prosecution, negligence, and false imprisonment.

The Director of the Ontario Disability Support Program appealed a decision of the Social Benefits Tribunal which held that non-earner benefits received by the respondent following a motor vehicle accident were exempt from income calculations.

The Divisional Court allowed the appeal, finding that non-earner benefits do not qualify as an exemption for 'pain and suffering' under paragraph 43(1)4(i) of the General Regulation.

The court concluded that the benefits must be included in the calculation of income for the purposes of determining eligibility for income support.

The plaintiffs appealed the trial judge's assessment of damages arising from a motor vehicle accident, arguing the judge erred in finding the main plaintiff failed to mitigate her damages.

The defendants cross-appealed the damages assessment and appealed the order adding the Police Services Board as a defendant, as well as the trial costs order.

The Court of Appeal dismissed the appeals regarding the addition of the Board and the damages assessments.

However, the Court allowed the defendants' costs appeal, finding the trial judge erred by comparing the defendants' settlement offers to the gross damages assessment rather than the net judgment after statutory deductions.

The costs order was varied to award the plaintiffs their disbursements throughout but no legal fees after the date of the defendants' second offer.

The appellants appealed a trial judgment finding them liable for injuries sustained by a 78-year-old pedestrian who fell into a construction trench on a city street.

The trial judge found the appellants negligent for failing to provide adequate warning signs or barricades to protect pedestrians from the hidden danger of the trench.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of negligence, lack of willing assumption of risk, and lack of contributory negligence were supported by the evidence and entitled to deference.

The court also dismissed the appellants' appeal on non-pecuniary damages and the respondents' cross-appeal on Family Law Act damages.