Sloane Bernard

The defendant sought costs on a partial indemnity basis of $45,399.84 following the dismissal of the plaintiff's slip and fall action.

The trial was conducted under the simplified procedure rules and damages had been agreed at $20,000.

The court found the defendant's claimed costs excessive and disproportionate to the agreed damages and the complexity of the case.

Costs were fixed at $20,000 inclusive of disbursements.

The plaintiff brought an action for damages after tripping and falling in a parking lot owned by the defendant.

She alleged that she tripped over an insufficiently marked and maintained speed bump.

The court found that the speed bump's markings complied with industry standards and provided adequate warning.

Furthermore, the plaintiff could not objectively prove what caused her fall, relying only on speculation after returning to the scene weeks later.

The action was dismissed.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) decision regarding the respondent's entitlement to attendant care benefits under the Statutory Accident Benefits Schedule (SABS).

The LAT had found that the respondent's personal support worker did not need to prove economic loss, as she was providing services in the course of her ordinary employment, even though she was hired after the accident.

The Divisional Court held that the standard of review for the LAT's interpretation of the SABS is reasonableness.

The Court found the LAT's interpretation of s. 3(7)(e)(iii)(A) to be reasonable and consistent with the legislative intent to prevent abuse by unqualified family members, rather than to bar legitimate services.

The appeal was dismissed.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay.

The action arose from a 2008 motor vehicle accident.

The court applied a contextual approach, finding that the plaintiff adequately explained the litigation delay, which was partly due to issues identifying the vehicle's owner and the defendants' delay in delivering pleadings.

The court accepted that the failure to set the action down was due to counsel's inadvertence, the motion was brought reasonably promptly, and the defendants did not suffer significant prejudice.

The motion to set aside the dismissal was granted.

The plaintiff in a serious motor vehicle personal injury action moved for leave to amend the statement of claim to increase the prayer for relief from $950,000 to $2 million after the action had been set down for trial.

The defendants argued the amendment would be highly prejudicial because it would expose the individual defendants personally beyond their $1 million liability coverage and require retention of excess counsel shortly before trial.

The court held that Rule 26.01 mandates leave absent prejudice that cannot be compensated by costs or an adjournment, and found the defendants had not met that onus because liability issues were unchanged and the amendment concerned only quantum.

Leave was granted, subject to a proportionality-based term requiring the plaintiff to indemnify the individual defendants for excess counsel costs on a substantial indemnity basis if damages above policy limits were not ultimately recovered.

Motion costs were awarded to the plaintiff.