Kevin Temple

This is a costs endorsement following an appeal where success was divided between the parties.

The Court of Appeal for Ontario determined that, given the divided success, no order of costs would be made for the appeal.

The Court of Appeal for Ontario heard an appeal from a judgment awarding over $2.5 million in damages to a cyclist injured in a collision with a motor vehicle.

The appellants, the driver and the excess insurer, challenged the trial judge's findings on liability, damages, and costs.

The Court dismissed the appeal on liability, future care, deductions, and contingencies, upholding the trial judge's finding that the driver failed to discharge the reverse onus under the Highway Traffic Act.

However, the Court allowed the appeal regarding the past and future loss of income award, finding a palpable and overriding error in the trial judge's calculation of the pre-collision earning capacity by misinterpreting the currency of expert evidence.

The income loss award was varied to adjust the earning capacity figure to 2022 dollars instead of 2012 dollars.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s dismissal of the action for delay under Rule 48.14.

Applying the contextual approach and the Reid factors articulated in appellate jurisprudence, the court considered the adequacy of the explanation for litigation delay, inadvertence in missing the set‑down deadline, promptness in bringing the motion, and prejudice to the defendant.

The court found the delay adequately explained, the failure to meet the deadline resulted from inadvertence, and the motion was brought promptly once counsel became aware of the dismissal.

Although a presumption of prejudice arose due to the limitation period, the plaintiff rebutted the presumption and the defendant failed to establish actual prejudice.

The dismissal order was set aside, with limited thrown‑away costs payable by the plaintiff.