Lucie Pivrnec

The appellant appealed a trial judgment regarding damages and costs arising from a breach of fiduciary duty.

The Divisional Court dismissed the appeal on damages, finding no error in the trial judge's calculation or refusal to award punitive damages.

However, the court allowed the appeal on costs, finding the trial judge erred in denying costs under Rule 76.13(3) because the action included non-monetary claims and faced a substantial counterclaim, making the ordinary procedure appropriate.

The appellant was awarded trial costs on a partial indemnity basis.

The appellant passenger was seriously injured in a motor vehicle accident and was found 35 per cent contributorily negligent by a jury for failing to wear an available shoulder harness, despite wearing a lap belt.

The Court of Appeal held that the jury's assessment was unreasonable, as contributory negligence solely for failing to wear a seatbelt should not exceed 25 per cent.

The court substituted an assessment of 5 per cent contributory negligence, noting the appellant complied with the statutory requirement to wear a lap belt and the shoulder harness was a non-retracting type that was commonly worn improperly.