COURT OF APPEAL FOR ONTARIO

CITATION: Mahoney v. Sokoloff, 2015 ONCA 390

DATE: 20150601

DOCKET: C59700

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Wayde Mahoney, Kevin Mahoney, Carol Mahoney, Sean Mahoney and Morgan Mahoney

Plaintiffs (Appellants)

and

Wendy Sokoloff and Sokoloff Lawyers

Defendants (Respondents)

Bryan D. Rumble, for the appellants

Michael R. Kestenberg, for the respondents

Heard and released orally: May 15, 2015

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated October 30, 2014.

ENDORSEMENT

[1] The appellants appeal from the summary judgment granted by Belobaba J. of the Superior Court of Justice dated October 30, 2014. The motion judge held that the “core reason” for granting summary judgment was the appellants’ failure to put forward any evidence of losses or damages sustained in respect of i) the proposed claims of Wayde Mahoney’s brothers, Sean and Morgan, for damages under the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) for their loss of Wayde’s care, guidance and companionship due to his injuries; and ii) the respondents’ delayed application on behalf of Wayde Mahoney for benefits under the catastrophic impairment designation. The appellants submit that there are genuine issues requiring a trial on both matters and that summary judgment, therefore, should have been denied.

[2] We see no genuine issue for trial pertaining to the appellants’ alleged losses on the second ground. It is undisputed that the action was eventually settled for the amount of $1.4 million. The benefits available under the catastrophic impairment designation were retroactive with compound interest. In these circumstances, and absent any evidence from them to the contrary, the appellants failed to demonstrate that they suffered any damages as a result of the respondents’ alleged delay in applying for the appropriate catastrophic designation that were not fully compensated for under the settlement.

[3] We reach a similar conclusion concerning the suggested FLA claims of Wayde Mahoney’s brothers. The appellants complain that, in their summary judgment materials, the respondents failed to challenge specifically the appellants’ FLA-based claims for damages. In these circumstances, they say, they were not obliged to lead evidence of these damages on the summary judgment motion.

[4] We disagree.

[5] The appellants’ submission, in our view, misses the point. Apart from the matter of the respondents’ explanation for not advancing these FLA claims from the outset, the appellants were obliged in responding to the motion for summary judgment to put their best foot forward in respect of all their claims and to lead some evidence of the foundation for the brothers’ claimed losses under the FLA. They did not do so. As a result, on this record, the motion judge did not err in concluding that no genuine issue for trial arose regarding these claims.

[6] Accordingly, the appeal is dismissed. The respondents are entitled to their costs of the appeal in the agreed amount of $7,500, inclusive of disbursements and all applicable taxes.

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”