Kirk Frederick Stevens

The appellant landlord appealed a trial judgment awarding damages to the respondent tenant for breach of a demolition clause in a commercial lease.

The appellant argued the trial judge erred in finding the breach caused the respondent to close its business, and that the respondent failed to properly renew the lease.

The Court of Appeal dismissed the appeal, finding no overriding error in the trial judge's factual conclusions on causation.

The Court also held the appellant was estopped from insisting on formal compliance with the lease renewal clause due to its past conduct of accepting oral renewals.

The defendants in a personal injury action arising from a motor vehicle accident brought a motion to bifurcate the jury trial to determine liability before damages.

The motion judge dismissed the motion, finding no jurisdiction to bifurcate a trial with a valid jury notice.

On appeal, the order was set aside, with the appeal judge finding jurisdiction and ordering bifurcation.

The plaintiffs appealed to the Divisional Court.

The Divisional Court allowed the appeal, holding that a court lacks jurisdiction to bifurcate a trial with an extant jury notice if any party objects.

The court further held that even if jurisdiction existed, the test for bifurcation requires demonstrating an exceptional case, not merely a clear benefit in time and expense.

The defendants appealed a jury verdict awarding the plaintiff $343,560 for injuries sustained in a motor vehicle accident.

The appellants argued the trial judge erred by refusing leave to call two experts, inadequately instructing the jury on future income loss, and that the general damages award was excessive.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's rulings.

The plaintiffs cross-appealed the costs award, arguing the trial judge misapprehended that trial preparation time was duplicated.

The Court of Appeal allowed the cross-appeal in part, adjusting the costs reduction for trial preparation.

The appellants (CNR) insured a custom-built tunnel boring machine under an 'all risks' policy that excluded the cost of making good 'faulty or improper design'.

During construction, the machine failed due to excess differential deflection, allowing dirt to penetrate the main bearing and causing significant delay and repair costs.

The insurers denied coverage based on the design exclusion.

The Supreme Court of Canada held that the exclusion did not apply because the design was state-of-the-art and accommodated all foreseeable risks at the time it was finalized.

The Court concluded that a design is not 'faulty or improper' simply because it fails to withstand all foreseeable risks, provided it meets the highest engineering standards of the day.

In a medical malpractice action, the parties agreed to a bifurcated trial to determine the threshold factual issue of whether the defendant doctor advised the plaintiff to take a specific medication.

The trial judge decided the issue in favour of the plaintiffs, finding the doctor did not recommend the medication.

The defendants appealed to the Court of Appeal.

The plaintiffs moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal dismissed the motion to quash, holding that the order was final because it disposed of a defence and deprived the defendants of a substantive right that could be determinative of the entire action.

The appellant physician appealed a trial judgment finding them liable for medical malpractice following a colonoscopy procedure.

The trial judge found the physician breached the standard of care by failing to order an urgent CT scan when the plaintiff presented with severe abdominal pain and low haemoglobin, which would have diagnosed an intra-abdominal haemorrhage.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the expert evidence on standard of care and causation.

The appellant employer appealed a jury verdict finding it liable for malicious prosecution and awarding over $2 million in damages to a former employee and his wife.

The employer had provided police with surveillance video allegedly showing the employee stealing money, but deliberately withheld exculpatory portions of the video that corroborated the employee's innocent explanation.

The employee was convicted, fired, and lost his grievance arbitration before the exculpatory evidence was discovered, leading to his convictions being quashed.

The Court of Appeal dismissed the employer's arguments that the claim fell within the exclusive jurisdiction of a labour arbitrator and that it had not 'initiated' the prosecution.

The Court upheld the jury's significant awards for general, aggravated, and punitive damages, finding them justified by the employer's callous and malicious conduct over a 13-year period.

A cross-appeal regarding costs was also dismissed.

A two-year-old child suffered a catastrophic brain injury after falling from a fifth-floor apartment window with a broken screen.

The jury awarded over $12.9 million in damages, including maximum non-pecuniary damages and future care costs exceeding the plaintiffs' highest suggested scenario.

The landlord appealed the damage awards and several evidentiary rulings, including the admission of subsequent remedial measures and expert witness qualifications.

The Court of Appeal dismissed the appeal on liability and damages, finding the jury's awards supported by evidence and the trial judge's evidentiary rulings largely correct or harmless.

However, the Court allowed the appeal regarding a $350,000 costs premium payable by the landlord, reducing it to $50,000 based on recent Supreme Court jurisprudence, while allowing a cross-appeal to charge the balance of the premium to the child's award.

The insurers, having been successful on appeal, sought costs for both the appeal and the lengthy trial.

The Court of Appeal awarded the insurers their costs of the proceedings on a partial indemnity scale, fixed at $135,000.

The court also awarded the insurers their costs of the trial on a partial indemnity scale, fixed at $510,000, noting that the trial involved complex factual and legal issues and that the claimed fees were reduced to reflect an appropriate partial indemnity recovery rate of approximately 65%.

The plaintiffs appealed a Divisional Court order compelling the plaintiff to attend two defence medical examinations.

The defendant had previously brought a motion to adjourn the trial to conduct defence medicals, which was dismissed.

The defendant subsequently brought a second motion to compel attendance at rescheduled medicals prior to trial, which was also dismissed by the motion judge but allowed on appeal to the Divisional Court.

The Court of Appeal allowed the plaintiffs' appeal, holding that the second motion was substantially the same as the first, and the defendant was precluded by issue estoppel from relitigating the matter.

The appellant slipped and fell on a grape in the produce department of a grocery store owned by the respondent.

A jury found the respondent had taken reasonable care and dismissed the action.

On appeal, the appellants argued the trial judge erred in instructing the jury on the standard of care and causation, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the trial judge properly instructed the jury on the standard of reasonableness under the Occupiers' Liability Act, and that there was sufficient evidence of the respondent's floor maintenance program to support the jury's verdict.

The plaintiffs (CN companies) retained a manufacturer to build a custom tunnel boring machine (TBM) for a railway tunnel project.

The TBM broke down due to excess differential deflection, causing significant project delays.

The plaintiffs sought coverage under a builders risk insurance policy issued by the defendants.

The insurers denied coverage based on exclusions for faulty or improper design and inherent vice.

The trial judge found in favour of the plaintiffs, holding that the excess differential deflection was not foreseeable and thus the faulty design exclusion did not apply.

On appeal, the Court of Appeal allowed the appeal, finding that the trial judge erred in his foreseeability analysis.

The Court held that the risk of differential deflection was known and investigated by the designer, making it a foreseeable risk that the design failed to accommodate.

Consequently, the faulty or improper design exclusion applied, and the action against the insurers was dismissed.

Following an appeal that reduced the respondent's damage award from $55,000 to $1,000, the parties sought clarification on trial costs.

The appellants argued that the modest damage award justified no trial costs and relied on rules 57.05(1) and 76.13(3) regarding Small Claims Court and simplified procedure.

The Court of Appeal held that the respondent was successful at trial, the finding of negligence was not reversed, and it was reasonable to have brought the claim under the ordinary procedure.

The court awarded the respondent trial costs fixed at the previously agreed amount of $115,000.

The respondent was accidentally shot and injured by a youth who subsequently pleaded guilty to criminal negligence causing bodily harm.

The respondent obtained a civil judgment against the youth and then sought to recover from the homeowner insurance policies of the youth's mother and his aunt and uncle.

The motion judge found the youth was covered under the aunt and uncle's policy and that the 'criminal act' exclusion did not apply because there was no intent to injure.

The Court of Appeal allowed the insurer's appeal, holding that the 'criminal act' exclusion is unambiguous and applies to any breach of the Criminal Code, regardless of whether the insured intended to cause injury.

The intended plaintiffs in a medical malpractice action obtained an order for pre-action discovery of certain documents from the hospital and doctor.

The defendants appealed.

The Court of Appeal allowed the appeal, holding that the Rules of Civil Procedure do not permit pre-action discovery, and the intended plaintiffs had ample information to plead their case without a Straka order.

The Court also held that a report from the College of Physicians and Surgeons was inadmissible under the Regulated Health Professions Act.

The Court of Appeal issued a costs endorsement following the dismissal of two appeals by the appellant, African Lion Safari & Game Farm Ltd. The appellant was ordered to pay costs of $100,000 inclusive of GST and disbursements to the Cowles and Balac respondents, to be allocated between them.

An additional $20,000 inclusive of GST and disbursements was awarded to Jennifer Anne Cowles for her separate representation.

The successful appellants sought costs of $25,000 for the appeal.

The respondent argued for moderation because the appellants did not concede negligence until the appeal hearing, the respondent maintained a portion of the damage award, and due to the unique circumstances of the case.

The Court of Appeal agreed with the respondent and fixed costs at $5,000 inclusive of GST and disbursements, to be shared equally between the appellants.

In this personal injury appeal arising from a tiger attack at a drive-through safari zoo, the appellant challenged liability findings, the striking of its jury notice, the exclusion of surveillance evidence, and the treatment of contributory negligence in strict liability.

The majority held that the trial judge applied the correct jury-discharge test and was entitled to conclude that the legal, medical, actuarial, and evidentiary complexities made a judge-alone trial preferable.

Although the majority agreed that the investigator's evidence was wrongly excluded because any breach of professional conduct rules was a matter for the Law Society and not admissibility, the error was harmless because the appellant failed to show any possible effect on the result.

The majority also held it was unnecessary to decide the contributory negligence issue because the trial judge found the plaintiffs had not deliberately lowered the windows, and found no palpable and overriding error in the factual findings.

The appeal was dismissed, with a partial dissent that would have ordered a new trial on liability.

The plaintiff developed an infection and subsequently necrotizing fasciitis following a Caesarian section.

The trial judge found the defendant doctor and home care nurses negligent in their post-natal treatment and concluded this negligence caused the necrotizing fasciitis, applying a robust and pragmatic approach to causation.

On appeal, the Court of Appeal held that the trial judge erred in his application of the robust and pragmatic approach, as there was insufficient evidence to support a finding of causation on a balance of probabilities.

The appeal was allowed and damages were reduced to $1,000 for the pain and suffering flowing from the delayed treatment.

The successful appellant insurer sought partial indemnity costs of $171,943.31 for an appeal.

The Court of Appeal reduced the fees claimed by two-thirds, noting that the preparation time spent by junior lawyers and law clerks was excessive given the lack of complexity of the issues.

The court also reduced the costs because the insurer's trial counsel had failed to raise the issues on which the insurer ultimately succeeded on the liability appeal.

Costs were fixed at $50,000 for fees and $10,000 for disbursements, plus GST.