Robert J. Hooper

The appellants challenged an order striking their negligence claim against the federal respondent arising from the issuance of a firearms licence to the shooter.

The court held that the Firearms Act did not itself create a private law duty of care, but that an arguable duty could arise from a combination of statutory duties and pleaded facts showing the respondent knew or ought to have known the licence holder posed a risk to the deceased or to a narrow and particularized group including him.

Because such a claim was not impossible to plead, it was not plain and obvious that the action could not succeed.

The appeal was allowed to the extent of varying the order to strike the pleading with leave to amend, and appeal costs were awarded to the appellants.

Following the successful motion by the plaintiff to set aside a registrar's dismissal order, the parties could not agree on costs.

The defendant argued that no costs should be awarded because the plaintiff was granted an indulgence due to her former counsel's negligence.

The court held that while the plaintiff received an indulgence, the defendant's unreasonable opposition and failure to accept a reasonable offer to settle warranted a costs award.

The plaintiff was awarded $6,000 in costs on a partial indemnity scale.

The plaintiff moved to set aside a Registrar's order dismissing her action for delay.

The court considered the four factors from Reid v. Dow Corning Corp., finding that the plaintiff provided a satisfactory explanation for delay, largely due to her former counsel's misconduct and illness, and that the failure to set the action down was inadvertent.

The motion was brought promptly, and the defendant failed to demonstrate actual prejudice.

Emphasizing the principle that a client should not be irrevocably jeopardized by counsel's neglect, the court granted the motion to set aside the dismissal order, allowing the action to proceed to a determination on its merits.

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.

The infant respondent was struck by a vehicle while crossing a street on his way to school.

The trial judge found the appellant municipality liable because the accident occurred during the time a crossing guard was required to be present but was absent.

The trial judge also found the infant respondent was not contributorily negligent.

The municipality appealed, challenging the trial judge's factual findings regarding the timing of the accident and the assessment of contributory negligence.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence or application of the standard of care for children.

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 successful negligence trial where damages were agreed at approximately $7.85 million, the plaintiffs sought costs of $660,000.

The plaintiffs had previously settled with two defendants for $1,000,000 and received costs up to October 2005.

The plaintiffs beat their Rule 49 offer to settle made on March 12, 2015.

The court awarded partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs payable by the remaining defendant at $400,000 all inclusive.

The plaintiff, a 10-year-old boy, was struck by a vehicle while crossing a busy road at a school crosswalk.

The crossing guard employed by the defendant municipality had left her post early.

The driver of the vehicle was found to be speeding in poor weather conditions.

The court found both the driver and the municipality liable, apportioning fault equally at 50% each.

The court dismissed the defendants' claim of contributory negligence against the child.

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.

Following dismissal of a civil action for battery and negligence against healthcare providers and security personnel, the successful defendants sought costs.

The defendants had previously offered to consent to dismissal of the action without costs prior to trial.

The court held that, as the defendants were completely successful, they were entitled to recover their costs.

Costs were awarded on a partial indemnity basis and fixed in a lump sum.

A hospital patient sued a hospital and its security guards for battery after being restrained in the emergency department while a physician issued a Form 1 under the Mental Health Act.

The patient argued the restraint was unlawful and caused a rotator cuff injury.

The court found the restraint caused the injury but concluded the conduct was legally justified under s. 15 of the Mental Health Act because the physician had reasonable grounds to believe the patient’s infection impaired her judgment and placed her at risk of serious bodily harm.

The force used by security was minimal and proportionate to preventing the patient from leaving before urgent surgery.

Because the restraint was authorized by statute, the elements of battery were not established.

The applicant appealed a decision of the Criminal Injuries Compensation Board denying his claim for compensation for mental and nervous shock following the death of his estranged wife.

The wife died after falling from a vehicle while attempting to sell illicit drugs.

The Board denied the applicant's claim based entirely on the wife's illegal conduct.

The Divisional Court allowed the appeal, finding that the Board unreasonably failed to distinguish between the applicant's conduct and the wife's conduct, as the applicant was claiming as an independent victim.

The matter was remitted to a differently constituted panel for a new hearing.

The parties' Agreement to Arbitrate provided for an appeal directly to the Court of Appeal on a question of law.

The appellant filed the appeal in the Court of Appeal, but the court held that it lacked jurisdiction, as parties cannot confer jurisdiction by agreement and the Arbitration Act does not provide for direct appeals to the Court of Appeal.

The court declined to transfer the matter under s. 110 of the Courts of Justice Act, leaving the appellant to pursue remedies in the Superior Court.

The applicant sought income replacement benefits (IRBs) after being terminated from her employment more than five years following a motor vehicle accident.

The insurer raised a preliminary issue that the claim was statute-barred, having issued a clear denial of IRBs shortly after the accident when the applicant returned to work.

The arbitrator found that the insurer's initial denial was valid and triggered the two-year limitation period, which had long expired.

Furthermore, the arbitrator held that the applicant failed to comply with her statutory obligations to notify the insurer of her change in circumstances and to provide requested information, without a reasonable excuse.

The applicant was therefore precluded from proceeding to arbitration on her IRB claim.

Following a successful civil trial, the plaintiffs sought costs after beating their Rule 49 offer to settle.

The court considered Rule 49.10 of the Rules of Civil Procedure and the discretionary factors under Rule 57.01 and s. 131 of the Courts of Justice Act.

The plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The court emphasized that costs awards must be fair and reasonable to the unsuccessful party and are not a precise calculation of actual legal fees.

Costs were fixed globally at $75,000 inclusive of disbursements and taxes.

A lawyer brought a motion opposing confirmation of an Assessment Officer’s certificate that had reduced the lawyer’s account following assessment of legal fees arising from multiple motor vehicle accident and accident benefits claims.

The court reviewed the factors governing assessment of solicitors’ accounts established in Cohen v. Kealey & Blaney and held that the Assessment Officer erred in principle by focusing primarily on time dockets while giving insufficient consideration to the remaining factors.

Evidence demonstrated that the litigation was complex, the settlements achieved were substantial, and the client had signed detailed written instructions acknowledging the fee structure and expected net recovery.

The court found the client’s reasonable expectations and the results achieved supported the original account.

The certificate of assessment was set aside and the solicitor’s original account was confirmed.