Court of Appeal for Ontario

Citation: Xiao v. Gilkes, 2010 ONCA 600

Date: 2010-09-17

Docket: C50267

Before: Goudge, Cronk and Armstrong JJ.A.

Between:

Sheng Xiao Xiao, Ying Lin and Allan Xiao, a minor by his litigation Guardian Sheng Xiao Xiao

Plaintiffs (Appellants)

and

Kristine E. Gilkes

Defendant (Respondent)

Counsel:

Richard A. Levin and Nersi Makki, for the appellants

Alan L. Rachlin, for the respondent

Heard and released orally: September 10 2010

On appeal from the order of Justice Ian A. MacDonnell of the Superior Court of Justice, dated February 24, 2009, with reasons reported at 2009 CanLII 7180 (Ont. S.C.).

ENDORSEMENT

[1] In our view, the trial judge applied the proper legal test required by s. 35(5) of the Insurance Act, R.S.O. 1990, c. I.8. The plaintiff had to show serious and permanent impairment of an important physical, mental or psychological function. On the evidence before him there was ample basis for the trial judge, for the reasons he gave, to make the findings of fact he did. None constitute palpable and overriding error. His fundamental finding was that the plaintiff had not proven any serious impairment that was permanent. Even though the plaintiff’s marriage unfortunately broke up after the accident, the plaintiff did not prove on a balance of probabilities that any physical or psychological impairment that may have caused or contributed to this was serious and permanent.

[2] As to costs we see no basis to interfere with the discretion exercised by the trial judge in making this award. The award appropriately reflects, in our view, a fair and reasonable quantum.

[3] The appeal must be dismissed.

[4] Costs to the respondent fixed at $8,000 inclusive of disbursements and applicable taxes.

“S. T. Goudge J.A.”

“E. A. Cronk J.A.”

“Rob P. Armstrong J.A.”