Nikoleta Koutsoubos-Giovanoglou

This is a costs endorsement following an appeal where success was divided between the parties.

The Court of Appeal for Ontario determined that, given the divided success, no order of costs would be made for the appeal.

The Court of Appeal for Ontario heard an appeal from a judgment awarding over $2.5 million in damages to a cyclist injured in a collision with a motor vehicle.

The appellants, the driver and the excess insurer, challenged the trial judge's findings on liability, damages, and costs.

The Court dismissed the appeal on liability, future care, deductions, and contingencies, upholding the trial judge's finding that the driver failed to discharge the reverse onus under the Highway Traffic Act.

However, the Court allowed the appeal regarding the past and future loss of income award, finding a palpable and overriding error in the trial judge's calculation of the pre-collision earning capacity by misinterpreting the currency of expert evidence.

The income loss award was varied to adjust the earning capacity figure to 2022 dollars instead of 2012 dollars.

The plaintiff brought an urgent motion to conditionally strike the jury notice for a trial scheduled to commence on January 17, 2022, due to COVID-19 pandemic developments suspending jury selections.

The defendants opposed the motion.

The court considered factors such as court resources, local pandemic impact, prejudice to parties (especially the plaintiff due to financial implications and case age), and history of adjournments.

The court granted the plaintiff's motion, ordering that the trial proceed without a jury if juries are not being impaneled, and awarded costs to the plaintiff.