Mary K. Grosso

The appellants appealed the trial judge's dismissal of their action for damages against the City of Hamilton, which arose from a motorcycle accident caused by a pavement discontinuity.

The trial judge had found the City established a defence under the Municipal Act, 2001, by meeting Minimum Maintenance Standards (MMS).

The Court of Appeal found that the trial judge committed a palpable and overriding error in determining the height of the discontinuity, as the City failed to meet its onus to prove compliance with MMS.

The Court also found a palpable and overriding error in the trial judge's assessment of contributory negligence, attributing 100% fault to the respondent.

The appeal was allowed, and judgment was granted for the appellants.

The plaintiffs moved for partial summary judgment on liability in a civil action arising from historical sexual assaults committed by the defendant, who had previously pleaded guilty to indecent assault charges involving the plaintiffs.

The court held that s. 22.1 of the Evidence Act made the convictions proof of the essential facts of the offences and that abuse of process prevented the defendant from denying liability in the civil proceeding.

Applying the summary judgment principles in Hryniak and the caution in Butera regarding partial summary judgment, the court concluded this was one of the rare and clearest cases where liability could be readily bifurcated from damages and causation.

Partial summary judgment on liability was granted, with damages and causation left for trial.

The plaintiffs brought a motion to amend the Trial Record to remove the defendants' Amended Statement of Defence, and a motion to set aside a previous consent order dismissing the action against their own insurer, The Co-Operators.

The defendants brought a cross-motion for leave to amend their statement of defence to plead 'inevitable accident' due to a brain tumour.

The court granted the defendants' motion to amend, finding no non-compensable prejudice to the plaintiffs.

The court dismissed the plaintiffs' motion to amend the Trial Record and their motion to set aside the consent order, finding no material change in circumstances or mutual mistake that would justify setting aside the final order.

The plaintiffs sought court approval of an infant settlement and disbursement of funds.

The court approved the $58,000 settlement for the infant plaintiff, Bentley Hall, who suffered abuse at school.

However, the court declined to approve the request to pay the net settlement funds into a Registered Disability Savings Plan (RDSP), ordering them paid into court instead, citing a lack of exceptional circumstances to deviate from Rule 7.09(1).

Furthermore, the court refused to enforce the plaintiffs' contingency fee agreement (CFA) because it was not in writing, as required by the Solicitors Act and its Regulation.

The proposed legal fees were also deemed unreasonable and disproportionate, leading the court to assess and reduce them from $15,461.79 to $11,865 (including HST).

The applicant sought to pass his accounts for the estate of his late mother.

The respondent raised numerous objections, asserting that a trial was necessary due to conflicting evidence and incomplete records regarding estate assets, including a family business, household contents, and a bank account.

The court, applying Rule 74.18(13.1) of the Rules of Civil Procedure, determined that a fair decision could not be made on the paper record and directed a trial on the unresolved issues.

Specific directions were given for joint retention of valuators for the business and property contents, and for trial procedures.

This decision addresses the costs arising from a successful motion brought by Lexfund Inc. The court fixed Lexfund's partial indemnity costs, payable by the Ferro defendants, in the amount of $22,477.94, inclusive of disbursements and HST.

No other costs orders were made.

Lexfund Inc. brought a motion seeking to extend a timetable for several actions, extend time to elect to proceed with counterclaims, and to proceed against the estate of Lucio Anthony Ferro.

These actions, primarily debt collection for litigation funding loans, had been administratively dismissed for delay.

The court considered Lexfund's explanations for delay, the lack of prejudice to the defendants regarding the principal debt, and the principles of justice and proportionality.

While acknowledging Lexfund's counsel's "sloppy practice" the court found no deliberate intention to abandon the files and that the litigation should proceed on its merits.

The court granted the extensions and permission to proceed against the estate, but imposed conditions to mitigate prejudice to the individual defendants regarding interest, setting a simple interest rate of 5% per annum and limiting the period for which interest could be charged.

This is a costs decision on appeal from a trial judgment concerning liability for damages arising from an accident.

The appellants sought to challenge the trial judge's costs award.

The Court of Appeal determined that liability should be apportioned two-thirds to Safranyos and one-third to Hamilton.

The court made a Sanderson order requiring Safranyos to pay one-third of McHugh's costs of trial and appeal, but declined to impose such an order against Hamilton, as Hamilton made no arguments relating to McHugh's liability at trial or on appeal.

A motor vehicle collision occurred at an intersection in Hamilton when a vehicle operated by Ms. Safranyos failed to yield the right-of-way and was struck by a vehicle operated by Mr. McHugh, who had consumed alcohol and was speeding.

The trial judge found all three defendants liable: Ms. Safranyos at 50%, Mr. McHugh at 25%, and the City of Hamilton at 25%.

The City appealed on grounds that the trial judge misapplied the non-repair standard and improperly used adverse inferences.

Mr. McHugh appealed on grounds that the trial judge erred in finding he could have avoided the collision and misused evidence regarding his intoxication.

The Court of Appeal dismissed the City's appeal but allowed Mr. McHugh's appeal, finding the trial judge committed palpable and overriding errors in her factual findings and legal analysis regarding Mr. McHugh's liability.

Lexfund Inc. sought summary judgment against multiple defendants, including former clients and the estate of their lawyer, Lucio Anthony Ferro, for repayment of litigation loans.

The loans, designed to finance personal injury actions, were structured with high compound interest and a condition of no repayment if the civil action was unsuccessful.

The defendants argued Lexfund failed to comply with the Consumer Protection Act's disclosure requirements, specifically regarding timely and adequate information provided directly to borrowers.

The court found Lexfund in flagrant breach of the Act, noting that loan documents were signed in blank, completed documents were not sent to borrowers, and loan statements were misleading by showing periodic advances instead of a single lump sum.

Consequently, the court dismissed Lexfund's claim for compound interest, finding actual prejudice to the borrowers.

However, recognizing the borrowers benefited from the loans, the court ordered them to repay the principal with simple interest at 5% per annum.

Judgment was also granted against the Ferro defendants for the cumulative amount owing.

Following the settlement of an application under the Substitute Decisions Act regarding the property and personal care of their mother, the parties sought costs.

The applicant sought full indemnity costs from the mother's assets, while the respondents sought costs from the applicant.

The court found that the applicant had acted unreasonably, commenced unnecessary litigation, and rejected reasonable settlement offers.

The court ordered the applicant to personally pay $40,000 in costs to the respondents on a substantial indemnity basis, and limited the costs payable from the mother's assets to only those portions of the legal work that actually benefited her.

The appellants challenged a summary judgment dismissing their third party claim for negligent misrepresentation, the refusal to remove the third party as the plaintiffs’ solicitor of record, and an order striking portions of their statement of defence.

The court held that the motions judge applied the proper summary judgment test and correctly found no evidence on which the negligent misrepresentation claim could succeed.

Although the court expressed concern that Rule 20 was not the proper procedural vehicle to strike part of a defence absent a motion for judgment, it upheld that order because the impugned estoppel defence was based on identical factual allegations and would amount to an abuse of process.

The appeals were dismissed with costs.