Jeffrey Pasternak

The court dismissed the defendants’ motion for summary judgment in a motor vehicle accident case, finding that there was a genuine issue for trial regarding the location of the vehicles at the time of the collision and the potential contributory negligence of the parties.

The decision reviews the summary judgment test, the reverse onus in rear-end collisions, and the application of negligence principles, concluding that conflicting evidence and credibility issues require a full trial.

The plaintiff, Patrick Addai, brought an action for damages for personal injuries sustained in a motor vehicle accident.

The defendant, Kelly Parkinson, moved for a determination that the plaintiff's claim for non-pecuniary loss was barred under s. 267.5(5) of the Insurance Act.

The court found the plaintiff's evidence regarding the causation and permanence of his alleged injuries (shoulders, wrists, dental, neck, back, headaches, psychological) to be inconsistent and unreliable.

The court preferred the defendant's expert evidence and concluded that the plaintiff failed to prove that his injuries constituted a permanent serious impairment of an important physical, mental, or psychological function caused by the accident.

Consequently, the defendant's motion was granted, and the plaintiff's claim for non-pecuniary loss was dismissed.

The appellant appealed a partial summary judgment granted by the motion judge in a rear-end motor vehicle collision case that occurred on an icy road during freezing rain.

The appellant argued that the motion judge applied the wrong test and failed to address the alleged contributory negligence of the respondent, contending that the respondent should not have stopped on the highway.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error and confirming that the motion judge correctly applied the summary judgment test.

The court upheld the finding that the respondent did not act negligently in stopping her vehicle given the road conditions and visibility issues.

The appellants appealed the dismissal of a third party claim arising from a tug-of-war injury.

The plaintiff was severely injured during a recreational tug-of-war at a campground when his arm became caught in a loop in the rope, resulting in amputation of his forearm.

The appellants sought contribution and indemnity from the third parties who participated in the game.

The motion judge dismissed the third party claim, finding that the third parties owed no duty of care to the plaintiff.

The Court of Appeal upheld the dismissal, holding that the third parties did not fall within any of the circumstances that would impose a positive duty to act, and that the injury was not a reasonably foreseeable result of participation in a recreational tug-of-war game.

This costs endorsement follows a motion where the defendant sought dismissal of the plaintiff's claim, which was denied, but other orders were made to advance the matter.

The plaintiff, self-represented, sought costs.

The court found the plaintiff was prima facie entitled to costs as the defendant was unsuccessful in its primary request for dismissal.

However, the plaintiff's claim for costs was significantly reduced due to insufficient evidence of lost remunerative activity, excessive hours claimed, and unsubstantiated disbursements.

The court awarded the plaintiff $500 in costs, inclusive of time and disbursements, noting that the plaintiff's inaction necessitated some of the orders made.

Following the successful summary judgment motions by six third parties dismissing the third party claims against them, the court determined the costs to be awarded.

The defendants argued that costs for a prior summary judgment motion and an appeal should not be included.

The court found that the preparation for the prior motion and attendance at the appeal were incidental to the third party claims and awarded costs on a partial indemnity scale, rejecting a request for substantial indemnity costs.

The defendants in a personal injury action arising from a recreational tug-of-war game brought a third-party claim for contribution and indemnity against several other participants in the game.

Six of the third parties moved for summary judgment to dismiss the claim against them.

The court applied the Anns/Cooper test and found that the participants did not owe a duty of care to the plaintiff, as they did not organize the event, create the risk, or have a special relationship requiring them to take positive action to prevent injury.

The court granted the motions and dismissed the third-party claims.