Colin S. Jackson

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 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.

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 plaintiffs, Ontario residents, were involved in a motor vehicle accident in New York with the defendants, who were New York residents.

The plaintiffs commenced an action in Ontario against the New York defendants and their own insurer.

The New York defendants successfully moved to stay the action for lack of jurisdiction.

On appeal, the Court of Appeal applied the real and substantial connection test and the eight factors from Muscutt v. Courcelles.

The court concluded that assuming jurisdiction over the out-of-province defendants for a foreign accident would violate principles of order and fairness, and dismissed the appeal.