Kimberly Anne Jossul

The appellants appealed the trial judge's dismissal of their action for damages against the City of Hamilton, which arose from a motorcycle accident caused by a pavement discontinuity.

The trial judge had found the City established a defence under the Municipal Act, 2001, by meeting Minimum Maintenance Standards (MMS).

The Court of Appeal found that the trial judge committed a palpable and overriding error in determining the height of the discontinuity, as the City failed to meet its onus to prove compliance with MMS.

The Court also found a palpable and overriding error in the trial judge's assessment of contributory negligence, attributing 100% fault to the respondent.

The appeal was allowed, and judgment was granted for the appellants.

This motion concerned the defendants' entitlement to costs after the plaintiffs' action was dismissed on consent, as the right of action was removed by s. 28 of the Workplace Safety and Insurance Act (WSIA).

The defendants sought costs for defending the action and for a related hearing before the Workplace Safety Insurance and Appeals Tribunal (WSIAT).

The court determined that costs related to the WSIAT hearing were not recoverable in the action, consistent with the WSIAT's no-costs regime.

Furthermore, the court significantly reduced the defendants' claimed costs for the action itself, finding that certain steps like examinations for discovery and pretrial attendance were unnecessarily incurred due to the defendants' delay in bringing the WSIAT application and their initial denial of the employment relationship.

The court fixed the party and party costs of the action, payable by the plaintiffs to the defendants, at $3,000.00 all inclusive.