Court File and Parties
COURT OF APPEAL FOR ONTARIO
Moldaver, MacPherson and Epstein JJ.A.
BETWEEN
Clyde Cooke and Jennifer Cooke
Plaintiffs (Respondents)
and
Donald C. Toivonen, Tong Thanh Nguyen, Thi Nhac Thai, Marcus Collette, Brian W. Price, Fisher Controls Inc., Randall O. Robinson and Peggy Robinson
Defendants (Appellants/Respondents)
Counsel:
Siobhan McClelland, for Brian W. Price and Fisher Controls Inc., appellants in the appeal
Lori Kruse, for Donald Toivonen, respondent in the appeal
Heard and endorsed: July 5, 2011
On appeal from the judgment of Justice Helen M. Pierce of the Superior Court of Justice, dated February 24, 2011.
APPEAL BOOK ENDORSEMENT
1With respect to the motion judge, we are of the view that there was some evidence upon which a trier of fact could find that the Cooke vehicle struck the Toivonen vehicle before being struck by the Price vehicle. On that scenario, there is a basis for making a finding of liability against Toivonen. Accordingly, the appeal is allowed, the order of Pierce J. is set aside and the motion for summary judgment is dismissed.
2The appellants are entitled to costs below which the parties agree should be $7,000 inclusive of disbursements and H.S.T. With respect to the appeal, the appellants are entitled to costs fixed at $5,000 inclusive of disbursements and H.S.T.