Court File and Parties

CITATION: Cooke v. Toivonen, 2011 ONCA 499

DATE: 20110706

DOCKET: C53430

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

[1] With 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.

[2] The 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.