Gary L. Petker

The appellant municipality appealed a trial judgment finding it negligent for failing to respond adequately to icy road conditions.

The municipality argued the trial judge erred by not applying a presumption of negligence against the respondent for crossing the centre line.

The Court of Appeal dismissed the appeal, finding the trial judge properly identified evidence rebutting the presumption, including the respondent's testimony, evidence of appropriate speed, and expert testimony that the icy road was the sole cause of the accident.

The plaintiffs invested in worthless start-up companies on the advice of their financial advisor, who was registered to sell mutual funds through the appellant dealer.

The advisor promoted these off-the-books investments openly from his office.

The trial judge found the dealer liable in negligence for failing to supervise the advisor and vicariously liable for his actions, concluding he was an employee rather than an independent contractor.

The Court of Appeal dismissed the dealer's appeal, upholding the findings that the dealer breached its duty to supervise its mutual fund sales agent and was vicariously liable for his wrongdoing.

The appellants appealed a motion judge's refusal to add two parties and a new oppression remedy to their statement of claim in a dispute over a real estate joint venture.

The motion judge had dismissed the amendments on the basis that the appellants failed to produce evidence supporting the allegations against the proposed parties.

The Court of Appeal allowed the appeal, holding that on a motion to amend pleadings, the facts pleaded must be taken as true and provable, and the court should not look beyond the pleadings to require evidentiary proof at that stage.

The proposed amendments adequately disclosed causes of action for conspiracy, inducing breach of contract, and oppression.

The plaintiff suffered catastrophic injuries in a head-on motor vehicle collision on an icy municipal road.

The plaintiff sued the municipalities responsible for winter road maintenance.

The court found that the municipal snow plough operator created the icy conditions by applying a sand/salt mixture that caused a re-freeze, and then failed to return within a reasonable time to treat the resulting ice.

The court held that the Minimum Maintenance Standards did not shield the municipalities because the standards do not cover situations where the municipality creates the hazard.

The municipalities were found fully liable for the agreed damages of $1,912,176.96, with no contributory negligence on the part of the plaintiff.

Following the granting of summary judgment dismissing the plaintiff’s nuisance claim, the court determined the appropriate costs award.

The plaintiff argued that the action constituted a public interest test case and sought an order that no costs be awarded.

The court rejected that characterization, finding the litigation primarily advanced the plaintiff’s private economic interests and did not qualify as public interest litigation warranting relief from the usual costs rule.

Applying the partial indemnity principle and considering the parties’ circumstances and prior offer to settle, the court fixed costs payable by the unsuccessful plaintiff.

The plaintiff was ordered to pay the defendant $24,767.02 in costs on a partial indemnity basis, plus HST.

The plaintiff, owner of a farm leased for raising rare breeding turkeys, sued the defendant, who purchased a neighbouring farm to build a commercial poultry barn.

The plaintiff alleged that the defendant's proposed barn would cause an actionable nuisance due to the risk of airborne pathogens, which prompted the plaintiff's tenant to threaten to terminate its lease.

The defendant brought a motion for summary judgment to dismiss the action.

The court granted the motion, finding that the plaintiff's operation was abnormally sensitive and that the defendant's proposed use, which complied with all regulatory requirements, did not constitute an unreasonable interference or actionable nuisance.

The respondent was injured in a motor vehicle accident and applied for long-term disability (LTD) benefits from her group insurer, which were denied.

She subsequently settled her LTD claim for a lump sum.

Her automobile insurer then refused to pay income replacement benefits (IRBs), arguing it was entitled to deduct the hypothetical LTD benefits she might have received had she successfully litigated the LTD claim.

The Court of Appeal dismissed the automobile insurer's appeal, holding that the LTD benefits were not 'available' to the respondent since they had been denied, and that she had not abandoned her application by settling the claim.

The appellants appealed a motion judge's refusal to stay Ontario proceedings against them based on an exclusive jurisdiction clause favouring British Columbia.

The Court of Appeal upheld the motion judge's decision, agreeing that the respondents had shown a 'strong case' not to enforce the clause.

The court deferred to the motion judge's weighing of factors, including that the claims were part of a larger multi-party action in Ontario, the respondents were unsophisticated, the clause was in a pre-printed contract, and the appellants showed no juridical advantage to a trial in British Columbia.

The appeal was dismissed.

The appellant appealed from a judgment enforcing a settlement.

The Court of Appeal found no error in law by the motion judge in enforcing the settlement and dismissed the appeal, awarding costs to the respondent to be deducted from the settlement funds.

The defendant insurer was successful on a motion and sought costs.

The Court of Appeal awarded modest costs of $2,500 to the insurer, noting that the insurer had refused to pay the $97,500 it was obligated to pay until after the motion.

The appellants, a stockbroker and two brokerage firms, appealed a trial judgment finding them liable for negligence and breach of contract resulting in the respondents' investment losses.

The trial judge found the broker engaged in unauthorized trading and the firms failed to supervise him or warn the clients.

The respondents cross-appealed the dismissal of their claims for loss of opportunity and punitive damages.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's findings on liability, apportionment, mitigation, and costs.

The appellant appealed a trial judgment setting aside a separation agreement and determining net family property.

The Court of Appeal found no error in the trial judge's conclusions that the respondent lacked capacity to sign the agreement, that its terms were unconscionable, and that it was signed under duress.

The court also upheld the trial judge's valuation of net family property.

The appeal was dismissed.

On cross-appeal, the court upheld the denial of pre-judgment interest but allowed the cross-appeal regarding costs, awarding the respondent her costs at trial on a party and party basis because she recovered a judgment in excess of her offer.

The applicant was injured in a rear-end motor vehicle accident and received weekly income benefits for three years.

He applied for ongoing benefits, claiming physical and psychological disability prevented him from working.

The arbitrator found that while the applicant suffered a herniated disc from the accident, he exaggerated his symptoms and his psychological condition was caused by pre-existing and psycho-social factors unrelated to the accident.

The arbitrator concluded the applicant retained the capacity and skills for suitable employment, such as a retail clerk or in construction trades, and dismissed the claim for ongoing benefits.