Robert Hooper

Following a successful negligence trial where damages were agreed at approximately $7.85 million, the plaintiffs sought costs of $660,000.

The plaintiffs had previously settled with two defendants for $1,000,000 and received costs up to October 2005.

The plaintiffs beat their Rule 49 offer to settle made on March 12, 2015.

The court awarded partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs payable by the remaining defendant at $400,000 all inclusive.

The plaintiff, a 10-year-old boy, was struck by a vehicle while crossing a busy road at a school crosswalk.

The crossing guard employed by the defendant municipality had left her post early.

The driver of the vehicle was found to be speeding in poor weather conditions.

The court found both the driver and the municipality liable, apportioning fault equally at 50% each.

The court dismissed the defendants' claim of contributory negligence against the child.

Following dismissal of a civil action for battery and negligence against healthcare providers and security personnel, the successful defendants sought costs.

The defendants had previously offered to consent to dismissal of the action without costs prior to trial.

The court held that, as the defendants were completely successful, they were entitled to recover their costs.

Costs were awarded on a partial indemnity basis and fixed in a lump sum.

A hospital patient sued a hospital and its security guards for battery after being restrained in the emergency department while a physician issued a Form 1 under the Mental Health Act.

The patient argued the restraint was unlawful and caused a rotator cuff injury.

The court found the restraint caused the injury but concluded the conduct was legally justified under s. 15 of the Mental Health Act because the physician had reasonable grounds to believe the patient’s infection impaired her judgment and placed her at risk of serious bodily harm.

The force used by security was minimal and proportionate to preventing the patient from leaving before urgent surgery.

Because the restraint was authorized by statute, the elements of battery were not established.

The parties' Agreement to Arbitrate provided for an appeal directly to the Court of Appeal on a question of law.

The appellant filed the appeal in the Court of Appeal, but the court held that it lacked jurisdiction, as parties cannot confer jurisdiction by agreement and the Arbitration Act does not provide for direct appeals to the Court of Appeal.

The court declined to transfer the matter under s. 110 of the Courts of Justice Act, leaving the appellant to pursue remedies in the Superior Court.

The applicant sought income replacement benefits (IRBs) after being terminated from her employment more than five years following a motor vehicle accident.

The insurer raised a preliminary issue that the claim was statute-barred, having issued a clear denial of IRBs shortly after the accident when the applicant returned to work.

The arbitrator found that the insurer's initial denial was valid and triggered the two-year limitation period, which had long expired.

Furthermore, the arbitrator held that the applicant failed to comply with her statutory obligations to notify the insurer of her change in circumstances and to provide requested information, without a reasonable excuse.

The applicant was therefore precluded from proceeding to arbitration on her IRB claim.

A lawyer brought a motion opposing confirmation of an Assessment Officer’s certificate that had reduced the lawyer’s account following assessment of legal fees arising from multiple motor vehicle accident and accident benefits claims.

The court reviewed the factors governing assessment of solicitors’ accounts established in Cohen v. Kealey & Blaney and held that the Assessment Officer erred in principle by focusing primarily on time dockets while giving insufficient consideration to the remaining factors.

Evidence demonstrated that the litigation was complex, the settlements achieved were substantial, and the client had signed detailed written instructions acknowledging the fee structure and expected net recovery.

The court found the client’s reasonable expectations and the results achieved supported the original account.

The certificate of assessment was set aside and the solicitor’s original account was confirmed.