Nestor Eugene Kostyniuk

The plaintiff's former solicitors, Lofranco Corriero, brought a motion for a solicitor's charging order under s.34 of the Solicitors Act, seeking a first charge on monies (damages and costs) awarded to the plaintiff at trial, in priority to the defendants' right of set-off for their own costs.

The court dismissed the motion, finding that no property or fund existed upon which a charge could be imposed.

The trial judge's final order, after applying statutory deductibles, credits, and Rule 49 cost consequences, resulted in a net payment from the plaintiff to the defendants.

The court emphasized that a solicitor's efforts must result in a net benefit or recovery of property for a charging order to be granted, and that severing the trial judge's order to create a fund would undermine the purpose of Rule 49.10.

The appellants appealed the dismissal of a third party claim arising from a tug-of-war injury.

The plaintiff was severely injured during a recreational tug-of-war at a campground when his arm became caught in a loop in the rope, resulting in amputation of his forearm.

The appellants sought contribution and indemnity from the third parties who participated in the game.

The motion judge dismissed the third party claim, finding that the third parties owed no duty of care to the plaintiff.

The Court of Appeal upheld the dismissal, holding that the third parties did not fall within any of the circumstances that would impose a positive duty to act, and that the injury was not a reasonably foreseeable result of participation in a recreational tug-of-war game.

Following a jury trial where the plaintiff was awarded general damages, housekeeping, and medical/rehabilitation costs, the court addressed post-trial issues including the application of the monetary threshold and deductible, prejudgment interest, collateral benefits, and costs.

The court applied the August 1, 2015 deductible of $37,385.17 to the non-pecuniary award, reducing it to $62,614.83, and credited the defendants for collateral benefits received by the plaintiff.

A 5% prejudgment interest rate was applied.

Due to the defendants' substantial Rule 49 offers exceeding the jury's net award, significant costs were awarded to the defendants, while the plaintiff's claimed costs were reduced.

A token cost award was also made to the defendants for a mistrial caused by the plaintiff's counsel.