Ava M. Hillier

Following a summary judgment dismissing the plaintiffs’ claim against a municipal defendant, the court addressed costs.

The defendant municipality sought costs of the entire action on a partial indemnity basis, arguing it had succeeded in having the claim against it dismissed.

The plaintiffs argued that awarding full action costs was premature because the municipality remained involved through a cross-claim.

The court agreed that it was inappropriate to assess all action costs before trial but held that reasonable partial indemnity costs for the summary judgment motion were warranted.

The court reduced the requested preparation and attendance costs and awarded a portion of the claimed disbursements attributable to the motion.

The defendant City of Brampton brought a motion for summary judgment to dismiss the plaintiffs' personal injury claim arising from a slip and fall on an icy municipal sidewalk.

The City argued the claim was statute-barred because the plaintiffs failed to provide written notice within 10 days of the injury, as required by s. 44(10) of the Municipal Act.

The plaintiffs provided notice 18 months later.

The court found that the plaintiffs failed to establish a reasonable excuse for the delay under s. 44(12), as the injured plaintiff knew the cause of his fall and the responsible party on the day of the incident, and his injuries were apparent within months.

The court also found the plaintiffs failed to prove the City was not prejudiced by the delay.

The motion for summary judgment was granted and the claim against the City was dismissed.

The defendant doctor moved for leave to appeal two interlocutory decisions dismissing his motion for summary judgment in a medical malpractice action.

The motions judge had allowed the plaintiff to file a late affidavit without complying with language requirements and had dismissed the summary judgment motion despite the plaintiff failing to file any expert medical report.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the orders and that the proposed appeal involved matters of importance, including the necessity of expert evidence in medical malpractice cases and the application of the limitation period.

The plaintiff's husband died after receiving emergency medical care from provincial attendants.

The plaintiff sent a letter to the Ministry of Health expressing concerns about the care, which prompted an investigation.

The Province later moved to dismiss the plaintiff's subsequent wrongful death action, arguing the letter did not constitute formal notice of a claim under s. 7(1) of the Proceedings Against the Crown Act.

The Court of Appeal allowed the appeal, holding that the letter provided sufficient particulars to identify the occasion and allow the Crown to investigate, thereby satisfying the statutory notice requirement.