M. Nanne

Following a personal injury trial in which the plaintiff succeeded and obtained damages exceeding pre‑trial settlement offers, the court determined the appropriate costs award.

The court considered the costs discretion under s. 131 of the Courts of Justice Act and the factors under Rule 57.01 of the Rules of Civil Procedure, as well as the cost consequences relating to Rule 76 simplified procedure.

Although the damages awarded were within the simplified procedure monetary threshold, the court found it was reasonable for the plaintiff to proceed under the ordinary procedure given the seriousness of the injuries, the defendant’s firm denial of liability, and the procedural complexity including a jury trial that was later discharged.

The court held that Rule 76 should not deprive the plaintiff of costs and that the plaintiff’s favourable settlement offers justified partial indemnity costs before the first offer and substantial indemnity costs thereafter.

Costs were fixed at $84,100 inclusive of HST and disbursements.

The plaintiff brought a negligence action after suffering a fractured shoulder in a fall at a restaurant step leading into a private party room.

The court considered the occupier’s duty of care under s. 3(1) of the Occupier’s Liability Act and whether the restaurant took reasonable steps to ensure patrons were safe.

Evidence showed staff failed to follow established protocols for escorting guests and warning them about the step, and the step lacked illumination or other safety features.

The court found the warning sign inadequate and concluded the occupier breached its statutory duty.

However, the plaintiff was found 25% contributorily negligent for failing to watch where she was walking as she approached the step.

General damages of $50,000 and limited special damages were awarded, reduced by contributory negligence.

During a jury trial for a slip and fall claim at a restaurant, the plaintiff moved to strike the jury notice and discharge the jury after the defendant called witnesses whose evidence had not been disclosed prior to trial.

The defendant also failed to produce relevant safety manuals in its affidavit of documents.

The court found that the defendant's ongoing failure to make full and timely disclosure created evidentiary complexities that would be difficult for a jury to properly weigh.

The court granted the motion, struck the jury notice, and ordered the trial to proceed by judge alone.