Robert J. Hooper

This is a costs decision on appeal from a trial judgment concerning liability for damages arising from an accident.

The appellants sought to challenge the trial judge's costs award.

The Court of Appeal determined that liability should be apportioned two-thirds to Safranyos and one-third to Hamilton.

The court made a Sanderson order requiring Safranyos to pay one-third of McHugh's costs of trial and appeal, but declined to impose such an order against Hamilton, as Hamilton made no arguments relating to McHugh's liability at trial or on appeal.

A motor vehicle collision occurred at an intersection in Hamilton when a vehicle operated by Ms. Safranyos failed to yield the right-of-way and was struck by a vehicle operated by Mr. McHugh, who had consumed alcohol and was speeding.

The trial judge found all three defendants liable: Ms. Safranyos at 50%, Mr. McHugh at 25%, and the City of Hamilton at 25%.

The City appealed on grounds that the trial judge misapplied the non-repair standard and improperly used adverse inferences.

Mr. McHugh appealed on grounds that the trial judge erred in finding he could have avoided the collision and misused evidence regarding his intoxication.

The Court of Appeal dismissed the City's appeal but allowed Mr. McHugh's appeal, finding the trial judge committed palpable and overriding errors in her factual findings and legal analysis regarding Mr. McHugh's liability.

The plaintiff brought a Rule 21 motion seeking a determination on the applicable prejudgment interest rate in a solicitor's negligence action, specifically whether the rate should be from the Statutory Accident Benefits Schedule (SABS) or the Courts of Justice Act.

The court declined to determine the issue on a motion, finding that a trial judge with a full evidentiary record would be in a better position to assess the relevant factors and avoid a potentially punitive outcome, leaving the interest rate dispute for trial.

An appeal from a Superior Court of Justice order was dismissed on consent of both parties.

The appellant, 144673 Ontario Limited carrying on business as Whiskey A Gogo, and the respondent, the Estate of Freddie Romanoski, agreed to the dismissal of the appeal with costs awarded to the respondent.

This motion addressed whether the mother of an unborn child, whose father died due to negligence, could pursue a claim for pecuniary losses under section 61 of the Family Law Act (FLA) as a 'spouse.' The defendant sought summary judgment to dismiss the mother's claim, arguing that the definition of 'child' and 'spouse' in the FLA did not extend to an unborn child for the mother's benefit.

The court dismissed the defendant's motion, finding that the mother was entitled to pursue her claim under section 61 of the FLA, consistent with the Act's remedial nature and the legal fiction of a child *en ventre sa mère*.

Following a personal injury trial arising from a municipal sidewalk trip-and-fall, the successful plaintiffs sought costs after recovering damages exceeding their pre-trial settlement offer.

The court considered Rule 49.10 of the Rules of Civil Procedure and rejected the defendant’s argument that the plaintiffs’ offer was not a good faith attempt to settle.

Because the judgment exceeded the offer and the defendant had made no counter-offer, the plaintiffs were entitled to partial indemnity costs up to the date of their offer and substantial indemnity costs thereafter.

However, the court exercised its discretion to reduce the claimed hourly rates and hours as excessive for a relatively non-complex case involving straightforward liability and damages issues.

The court fixed reasonable fees, disbursements, and HST, and also amended the earlier judgment to adjust the start date for prejudgment interest under s. 128 of the Courts of Justice Act.

The plaintiff tripped and fell on a municipal sidewalk, sustaining a rotator cuff tear.

She brought an action against the municipality for failing to maintain the sidewalk in a reasonable state of repair.

The court found that a height differential of 3/4 to 1.25 inches existed between sidewalk slabs, constituting a state of non-repair that the municipality failed to identify or repair.

However, the court also found the plaintiff 50% contributorily negligent for failing to pay attention to where she was walking.

Damages were assessed and reduced by 50%, resulting in an award of $107,765 to the plaintiff and $5,000 to her husband under the Family Law Act.