Martin P. Forget

The appellants appealed a trial judgment finding them liable for injuries sustained by a 78-year-old pedestrian who fell into a construction trench on a city street.

The trial judge found the appellants negligent for failing to provide adequate warning signs or barricades to protect pedestrians from the hidden danger of the trench.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of negligence, lack of willing assumption of risk, and lack of contributory negligence were supported by the evidence and entitled to deference.

The court also dismissed the appellants' appeal on non-pecuniary damages and the respondents' cross-appeal on Family Law Act damages.

The appellant solicitor appealed an order requiring him to personally pay $10,000 in costs under Rule 57.07 of the Rules of Civil Procedure.

The motions judge had awarded costs against the solicitor largely due to allegations of unprofessional conduct and conducting the litigation in an unreasonable manner.

The Divisional Court allowed the appeal, finding that the motions judge failed to apply the 'extreme caution' principle and did not establish how the solicitor's conduct caused costs to be incurred unnecessarily.

The court emphasized that Rule 57.07 is compensatory, not punitive, and should not be used to sanction professional misconduct that does not result in wasted costs.

The plaintiff was injured in a boating accident involving two defendants.

Prior to trial, the plaintiff entered into a Mary Carter agreement with one defendant, receiving a settlement of $365,000 for damages.

At trial, the jury assessed total damages at $312,021 and apportioned liability between the plaintiff and both defendants.

The trial judge refused to deduct the settlement amount from the damage award and ordered the non-settling defendant to pay his proportionate share.

The non-settling defendant appealed.

The Court of Appeal allowed the appeal, holding that the settlement monies must be deducted from the total damage award to prevent double recovery.

Since the settlement exceeded the total damages assessed, the action against the non-settling defendant was dismissed.

The appellant appealed a motion judge's decision dismissing his claim.

The Court of Appeal found no error, agreeing that the appellant willingly assumed the risk of driving on a closed road, which triggered section 4(1) of the Occupier's Liability Act.

The appeal was dismissed with costs fixed at $10,000.

The appellants appealed the dismissal of their personal injury claim.

The trial judge had found the plaintiff's evidence regarding how the accident occurred to be confusing and inconsistent due to her age and illness, and drew an adverse inference from the failure to call a witness to the accident.

The Court of Appeal upheld the trial judge's findings, concluding there was no prima facie case of negligence, and dismissed the appeal with costs.

The appellants appealed an order dismissing their action based solely on their failure to satisfy a prior costs order.

The Court of Appeal allowed the appeal, finding that because the prior costs order did not specify a time for payment, the motion judge erred by not giving the appellants a reasonable opportunity to pay the outstanding costs.

The action was reinstated on the condition that the costs award be paid within thirty days.

The applicants sought leave to appeal an order requiring them to post security for costs.

The plaintiffs had made a proposal to creditors under the Bankruptcy and Insolvency Act, meaning the proceeds of the action would benefit the creditors.

The motions judge ordered security for costs, finding the plaintiffs were nominal and the creditors who stood to benefit had not shown an inability to post security.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the decision and that the proposed appeal did not involve matters of general importance.

The appellant insurer appealed an order appointing an appraiser under s. 128(5) of the Insurance Act, arguing the policy was void due to a material change in risk under Statutory Condition 4.

The Court of Appeal dismissed the appeal, finding that liability remained a live issue because the insurer chose not to cross-examine the insured on her affidavit asserting a valid policy.

The court noted that even if a breach occurred, relief from forfeiture might be available, making the appraisal process appropriate for resolving valuation issues.

Following the release of reasons for judgment on May 17, 2002, the Court of Appeal received the respondents' Bill of Costs and written submissions from the parties.

Having regard to the success on appeal, the legal issues raised, and the submissions, the court awarded the respondents their costs on a partial indemnity basis, fixed at $10,500 inclusive of Goods and Services Tax and disbursements.

The respondents, who operated a horse farm, were sued by a horse trainer who sustained injuries after falling from a horse.

The trainer initially pleaded she was an employee, but later amended her claim to remove references to employment, as the respondents' farm liability insurance policy excluded coverage for employees.

The insurer refused to defend the action, arguing the pleadings were manipulated and seeking to introduce extrinsic evidence to prove the trainer was an employee.

The applications judge declared the insurer had a duty to defend and declined to consider the extrinsic evidence.

The Court of Appeal dismissed the insurer's appeal, holding that the duty to defend is determined by the pleadings and the policy, and that extrinsic evidence cannot be used to make premature findings of fact on matters at issue in the underlying tort litigation.