Court of Appeal for Ontario

Date: 2018-12-06 Docket: C63133 and C63175

Judges: Strathy C.J.O., Roberts and Paciocco JJ.A.

Parties

First Action

Plaintiffs (Respondents):

• Madeline Smith, Laura Smith, and Randy Smith, minors by their Litigation Guardian, Florence Smith
• Florence Smith personally
• Thomas Smith
• Thomas Smith Jr.
• Madeline Smith
• Edward Smith
• Gladys Lianos
• George Lianos

Defendants (Appellants/Respondent):

• Dawn Marie Safranyos
• Daryl S. McHugh
• City of Hamilton
• Cumis Insurance

Second Action

Plaintiffs (Respondents):

• Alexandra Safranyos and Victoria Safranyos, both infants under the age of 18 years by their Litigation Guardian, Shelly Lalonde
• Shelly Lalonde personally
• Cynthia Green

Defendants (Appellants/Respondent):

• Dawn Marie Safranyos
• Daryl S. McHugh
• City of Hamilton

Counsel

For the appellant, Daryl S. McHugh: Barry A. Percival and Grant D. Bodnaryk

For the appellant, the City of Hamilton: David A. Zuber, James B. Tausendfreund, and Marcella Smit

For the respondents, Madeline Smith, Laura Smith, Randy Smith, Florence Smith, Thomas Smith, Thomas Smith Jr., Madeline Smith, Edward Smith, Gladys Lianos, and George Lianos (the "Smith respondents"): Robert J. Hooper and Mary Grosso

For the respondents, Alexandra Safranyos, Victoria Safranyos, Shelly Lalonde, and Cynthia Green (the "Safranyos respondents"): M. Claire Wilkinson

For the respondent, Dawn Marie Safranyos: Jack F. Fitch and Ryan Khan

Hearing and Appeal

Heard: March 27, 2018

On appeal from: The judgment of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated December 7, 2016 (unreported).

Reasons for Decision on Costs

[1] Dawn Marie Safranyos ("Safranyos") and the City of Hamilton ("Hamilton") acknowledge that as a result of this court's order on appeal, liability for the plaintiffs' damages should be apportioned two-thirds to Safranyos and one-third to Hamilton. Having considered the parties' written submissions with respect to the costs of trial and appeal, we make the following order:

a. The order for the payment of costs by Daryl S. McHugh ("McHugh") is set aside. The plaintiffs' costs, fixed by the trial judge at $339,000 for the Smith plaintiffs and $256,000 for the Safranyos plaintiffs, shall be paid two-thirds by Safranyos ("Safranyos") and one-third by Hamilton;

b. Safranyos shall pay McHugh's costs of trial in the amount of $69,557.62, inclusive of HST and disbursements;

c. Safranyos shall pay McHugh's costs of the appeal in the amount of $13,225.48, inclusive of HST and disbursements;

d. Hamilton shall pay Safranyos' costs of the appeal in the amount of $8,732.98, inclusive of HST and disbursements;

e. Hamilton shall pay the Smith plaintiffs' costs of the appeal in the amount of $32,516.63, inclusive of HST and disbursements; and

f. Hamilton shall pay the Safranyos plaintiffs' costs of the appeal in the amount of $24,716.81, inclusive of HST and disbursements.

[2] We reject the submission that McHugh should be deprived of all his costs of the trial based on his conduct. We have concluded that McHugh bore no responsibility for the accident and there is no basis on which to deprive him of costs.

[3] That said, McHugh has made no claim against the plaintiffs for his costs, either of trial or of appeal. In these circumstances, we have made a Sanderson order against Safranyos with respect to one-third of McHugh's costs of trial and appeal. It was reasonable for the plaintiffs to join McHugh as a defendant and Safranyos actively pursued McHugh's liability at trial and on appeal. We do not, however, increase Safranyos' liability for McHugh's costs due to McHugh's tactical decision not to pursue the costs he would otherwise have been entitled to claim against the plaintiffs.

[4] We have not made a Sanderson order against Hamilton in respect of the balance of McHugh's costs. As McHugh concedes, Hamilton made no argument at trial or on appeal relating to McHugh's liability. Moreover, the causes of action against Hamilton and McHugh were unrelated – Hamilton's liability was predicated on non-repair and was unrelated to McHugh's alleged liability. In our view, it is not in the interests of justice to require Hamilton to pay any portion of McHugh's costs.

George R. Strathy C.J.O.

L.B. Roberts J.A.

David M. Paciocco J.A.