Peter Cho

The court issued a corrigendum to correct and add the names of counsel for the plaintiffs and defendants in the original Reasons for Judgment issued on December 7, 2016.

All other contents of the original judgment remain unchanged.

The plaintiff brought a Rule 21 motion for a judicial determination of a question of law concerning the application and breadth of section 7(1) of the Consumer Protection Act (CPA) in the context of a negligence claim where the plaintiff was injured while skiing at the defendant's ski resort.

The issue engaged the interplay between consumer rights under the CPA and occupier liabilities under the Occupiers Liability Act (OLA).

The court found that the defendant's broad waiver of liability offended CPA requirements by attempting to waive the deemed warranty of "reasonably acceptable quality" under section 9(1) of the CPA.

However, the court rejected the plaintiff's argument that the entire waiver should be voided.

Instead, it applied the doctrine of notional severance to read down the waiver, making it unenforceable only for claims involving substantive and procedural rights under the CPA, while preserving its enforceability for negligence claims under the OLA.

This approach allows the plaintiff to pursue both negligence (subject to the OLA waiver) and breach of warranty (not subject to waiver) claims.

The plaintiff was rendered a quadriplegic after the minivan he was a passenger in was struck by a vehicle driven by the defendant Ellis at an intersection.

Ellis had stopped at a stop sign rather than the faded stop line, resulting in poor sightlines, and pulled into the intersection when it was unsafe.

The court found the City of Hamilton 50% liable for failing to maintain the stop line, which created an unreasonable risk of harm.

Ellis was found 50% liable for failing to ensure it was safe to proceed.

Claims against the driver of the minivan were dismissed.

Following a seven‑day personal injury trial arising from an accident at an amusement park, the plaintiffs obtained damages totalling $304,863.23 and the defendant’s counterclaim for contribution and indemnity against the father was dismissed.

The plaintiffs sought partial indemnity costs exceeding $226,000, while the defendant by counterclaim sought its own costs.

The court applied the principles under s.131 of the Courts of Justice Act and Rules 49 and 57 of the Rules of Civil Procedure, emphasizing proportionality, the principle of indemnity, and the reasonableness of preparation time and disbursements.

The court reduced excessive preparation hours and excluded certain disbursements but accepted the reasonableness of counsel’s hourly rates.

Costs were fixed at amounts considered fair and reasonable in light of the trial result and proportionality considerations.

Following a trial, the defendant requested production of opposing counsel’s computer dockets to obtain evidence of the time and expenses incurred for the purpose of assessing costs.

The plaintiffs objected, arguing such detailed disclosure was not required under the Rules of Civil Procedure.

The court reviewed the principles governing costs assessments, emphasizing that fixing costs is not a mechanical calculation based on hours multiplied by rates.

Considering the significant expense and privilege concerns associated with producing detailed dockets, the court held that such production was not appropriate in the circumstances.

The request for production of the dockets was dismissed and the responding party was directed to deliver its costs submissions within two weeks.

The minor plaintiff, who had a pre-existing condition making his bones prone to fracture, was injured while attempting to board a continuously moving amusement park ride.

The plaintiffs sued the amusement park operator for negligence under the Occupiers' Liability Act.

The court found the defendant breached its duty of care by failing to post warning signs, failing to provide verbal instructions that the ride did not stop, and failing to have sufficient staff present.

The court dismissed the defendant's claims of contributory negligence against the minor and his father.

Damages were awarded to the minor plaintiff and his parents, taking into account the minor's pre-existing condition under the crumbling skull rule.

During a personal injury trial arising from a golf cart accident, the court was asked to determine whether a severance package received by the plaintiff after his termination should be deducted from any damages awarded for loss of income.

The plaintiff argued the severance fell under the private insurance exception to the rule against double recovery.

The court agreed, finding that the severance package was obtained in exchange for the plaintiff giving up his rights as a long-term employee, and was not merely a continuation of salary.

Therefore, no deduction for the severance allowance would be made from any jury award for past or future loss of income.

The defendants moved for summary judgment dismissing a personal injury action arising from a workplace fall, arguing there was no genuine issue requiring a trial and no evidence of negligence or breach of statutory duty under the Occupiers Liability Act.

The plaintiff, an experienced contractor hired to replace a water tank, fell from structural studs above a suspended ceiling while accessing a water valve located more than ten feet above the floor.

The defendants argued the plaintiff chose an unsafe method of access and could not identify the cause of his fall.

The court held that genuine issues remained for trial, including whether the defendants directed the plaintiff to access the valve in that manner and whether the condition of the premises breached the statutory duty under the Occupiers Liability Act.

Credibility conflicts between the plaintiff and the defendants’ agent and unresolved factual issues made summary judgment inappropriate.

The plaintiffs sought costs following a 22-day product liability trial where the jury awarded them $1,157,850 in damages but found the plaintiff 25% contributorily negligent.

The court awarded costs on a partial indemnity basis, rejecting the plaintiffs' request for substantial indemnity costs and a cost premium.

The court also declined the defendants' request to reduce the costs award by 25% to reflect the contributory negligence finding, noting that the plaintiff's negligence did not materially affect the prospects for settlement.

The plaintiffs were awarded $387,140 in fees, plus HST and disbursements.

During a product liability jury trial, the defendants requested that the jury be charged on the doctrine of spoliation because the plaintiffs discarded the broken pieces of the cookware that allegedly caused the injury.

The court declined to charge the jury on spoliation, finding no evidence that the plaintiffs intentionally destroyed the evidence to affect ongoing or contemplated litigation.

The plaintiffs discarded the broken pieces shortly after the accident without contemplating a lawsuit.

The moving party sought leave to appeal an order dismissing its motion to strike the plaintiffs' statement of claim as statute-barred.

The plaintiffs had sued for water damage to their home, and the moving party argued the limitation period began when its technician caused holes in the roof.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's conclusion that discoverability could not be determined on the pleadings alone and required a full factual record.

The defendant brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike the plaintiffs’ statement of claim on the basis that the action was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The plaintiffs alleged that damage to their home occurred after a technician installation, but that significant damage only manifested during a later flooding event.

The court held that the limitation issue involved questions of discoverability and factual context that could not be determined at this preliminary stage.

However, the court found that the plaintiffs’ alternative claim for public nuisance failed to plead the essential elements of the tort, including interference with a public right affecting a substantial number of people.

The public nuisance claim was struck, but the remainder of the action was permitted to proceed.

The applicant was injured when she fell off her bicycle while maneuvering around a parked van that was encroaching on the sidewalk during a festival.

She applied for statutory accident benefits, but the insurer denied the claim, arguing the incident did not meet the definition of an 'accident' under the Schedule.

The arbitrator found that parking is an ordinary use of a vehicle and that the parked van created a situation of risk that directly caused the applicant's injuries.

The preliminary issue was resolved in favour of the applicant.