Robert Zigler

Following the settlement of a tort action arising from a pedestrian struck by a transit bus, the parties disputed the quantum of costs payable to the plaintiff.

The defendant argued the pretrial judge lacked jurisdiction to fix costs and that costs should only be proportional to the $100,000 tort component of the settlement, excluding the $550,000 statutory accident benefits component.

The court declined to recuse itself, finding jurisdiction to fix costs.

The court held that costs should be assessed on the global $650,000 settlement because the defendant directly benefited from the accident benefits settlement by reducing its tort exposure.

The court fixed partial indemnity fees at $300,000, post-settlement fees at $20,000, and disbursements at $125,000, plus HST.

The moving party dentist sought leave to appeal an order refusing partial summary judgment to dismiss the responding party's claim for damages arising out of an alleged geographic tongue injury.

The moving party argued there was no evidence linking his treatment to the injury.

The Divisional Court denied leave to appeal, finding no conflicting decision or matter of general importance.

The court noted that the responding party's expert had previously opined that the geographic tongue injury stemmed from the pain following the dental work, creating a genuine issue for trial.

In a medical negligence action arising from dental treatment, the defendants brought a summary judgment motion seeking dismissal of the claim and argued that an alleged condition described as “geographic tongue” was not caused by any negligence of the treating dentist.

After releasing earlier reasons dismissing the summary judgment motion, the court permitted additional written submissions on whether causation regarding that specific condition should nonetheless be resolved on the motion record.

The court declined to isolate and determine a discrete causation issue at the summary judgment stage.

It held that questions of damages and causation should be determined by the trial judge on a full evidentiary record, including expert evidence.

The action was therefore left to proceed to trial.

The Court of Appeal for Ontario issued a costs endorsement following the appeals in Westerhof v. Gee Estate and McCallum v. Baker.

The court ordered that the costs of the appeal in McCallum v. Baker be awarded to the respondent, fixed in the amount of $60,000 inclusive of disbursements and applicable taxes.

The defendant brought a motion for summary judgment to dismiss the plaintiff's motor vehicle accident claim based on the expiry of the limitation period.

On the eve of the motion, the defendant abandoned it, and the parties attended a hearing solely to determine costs.

The plaintiff sought costs on a substantial indemnity basis, arguing the motion was unreasonable from the outset because the permanency of her injuries was not discoverable until a later medical report was obtained.

The court found no reason to depart from the presumption under Rule 37.09(3) that the responding party is entitled to costs of an abandoned motion.

However, the court declined to award substantial indemnity costs, finding no bad faith or egregious conduct by the defendant.

Costs were fixed at $12,500 on a partial indemnity basis.

Two personal injury appeals were heard together to determine the scope of Rule 53.03 of the Rules of Civil Procedure regarding expert witnesses.

The Court of Appeal held that Rule 53.03 does not apply to 'participant experts' (such as treating physicians) or 'non-party experts' who form opinions based on their observation of or participation in the events at issue, rather than being engaged by a party for the litigation.

In Westerhof, the trial judge's erroneous exclusion of such evidence warranted a new trial.

In McCallum, the trial judge correctly admitted the treating practitioners' opinion evidence.

The appellant was injured in a motor vehicle accident and sued her insurer for caregiver benefits and extra-contractual damages.

The trial judge dismissed the action, finding it was statute-barred because it was commenced more than two years after the insurer's clear refusal to pay benefits.

The trial judge also found the appellant failed to establish entitlement to caregiver benefits beyond the 104-week period and dismissed her claims for bad faith and mental distress.

The Court of Appeal upheld the trial judge's findings, including his evidentiary ruling that medical reports in a document brief not referred to by witnesses were inadmissible for the truth of their contents.

On a summary judgment motion in a dental negligence action, the court held that conflicting expert opinions on standard of care and causation raised a genuine issue requiring a trial as against one dentist.

The plaintiffs had adduced expert evidence criticizing the decision to replace four restorations at one appointment, while the moving party relied on competing expert evidence supporting the treatment as within acceptable clinical judgment.

The court declined to resolve that evidentiary conflict on the motion and found a fair and just adjudication required viva voce expert evidence at trial.

However, the court granted summary judgment dismissing the claim against the other dentist, finding the record established only an independent contractor relationship and no basis for vicarious liability.

Following a jury trial in two related motor vehicle personal injury actions where the plaintiffs recovered no damages, the defendants sought substantial partial indemnity costs exceeding $178,000 against one plaintiff.

The court considered the general principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including reasonableness, the indemnity principle, and access to justice.

The plaintiff argued that costs should be nominal or none due to financial hardship, lack of employment, and the presence of some medical evidence supporting the claim.

The court held that while unsuccessful litigants should generally pay costs, impecuniosity and hardship may be considered in fixing the quantum.

Balancing these factors, the court reduced the costs significantly and ordered the plaintiff to pay $35,000.

The appellants appealed a summary judgment decision finding that two related corporations were privies, and that issue estoppel prevented the second corporation from re-litigating issues decided in a default judgment against the first.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial.

The companies shared the same controlling mind, business, location, and key employees.

The controlling mind knew the respondent had initially sued the wrong corporate entity but failed to disclose it, and the second corporation was bound by the first's deliberate choice not to defend the action.

The appellants appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding the motion judge correctly concluded that the appellants made a deliberate choice not to file a statement of defence.

Applying established jurisprudence, the court held that an intentional refusal to defend stands as a permanent bar to intervention.

The court also declined to interfere with the punitive damages award, noting the appellants provided no authority to support the contention that it was excessive.

The applicant sought leave to appeal his convictions under the Building Code Act and the Planning Act related to the size of his restaurant.

He argued that fresh evidence should have been admitted to show his building permit application was forged, and that he had a legal non-conforming use allowing a larger restaurant.

The Court of Appeal dismissed the application, finding the fresh evidence would not have affected the outcome and the applicant failed to prove his entitlement to a legal non-conforming use, which he lost in any event by altering the premises to comply with the by-law.

Following the dismissal of the appellants' appeal from a Master's order dismissing their action for delay, the successful respondents sought costs on a partial or substantial indemnity basis.

The court found the claimed amounts to be excessive and applied the principles from Boucher to fix costs on a partial indemnity scale.

The court awarded total costs of $59,852.03 across the four groups of respondents.

The plaintiffs appealed a case management Master's decision dismissing their action for delay.

The action, commenced in 1998, arose from a television news broadcast.

The Master found the plaintiffs' delay to be intentional, inordinate, and inexcusable, and their conduct contumelious, noting repeated failures to comply with court orders and timetables.

On appeal, the plaintiffs sought to introduce fresh evidence regarding the principal plaintiff's incarceration, which the court rejected for lack of due diligence.

The Divisional Court held that the appropriate standard of review for a case management Master's dismissal for delay is one of deference, requiring palpable or overriding error.

Finding no such error and no denial of natural justice in the Master's refusal to grant an adjournment, the court dismissed the appeal.

The defendants abandoned their motion for security for costs of the appeal.

The plaintiffs sought costs of the abandoned motion.

The court found that the plaintiffs did not conceal assets and were entitled to costs.

The court reduced the quantum of costs claimed, noting that the self-represented plaintiff was not entitled to claim fees at a lawyer's rate despite his litigation experience.

Costs were fixed at $8,000 for fees, plus disbursements and GST.

The appellant appealed a summary judgment dismissing an oppression action against the respondent Lee.

The Court of Appeal allowed the appeal, finding that there was evidence of conduct by Lee that could constitute oppression under s. 248 of the Business Corporations Act, including his involvement in a share purchase agreement, the removal of the deceased as Chair, and threats regarding life insurance policies.

The court held that it was inappropriate to weigh this evidence on a summary judgment motion and set aside the dismissal.