Sheldon Gilbert Q.C.

This appeal concerns the correct analytical approach to fixing costs when an action is settled before adjudication on the merits.

Two infant plaintiffs were catastrophically injured when struck by a vehicle in 2004.

After more than ten years of litigation, the parties settled in June 2017, three months before trial.

The settlement provided for $1 million from each of the Potrebics and Pipolos, with costs to be determined by the court.

The motion judge apportioned costs based on his assessment of the parties' respective liability for damages, finding the Potrebics solely responsible.

The appellants challenged this apportionment and the quantum of costs awarded.

The plaintiff sued the defendants for personal injuries sustained at a party.

The defendant McKellar's insurer appointed counsel to defend him under a reservation of rights, as the claim exceeded policy limits.

McKellar retained personal counsel for his over-limits exposure.

The insurer-appointed counsel negotiated a settlement within policy limits, which the plaintiff accepted.

McKellar's personal counsel objected to the settlement and brought a motion to be appointed co-counsel, seeking to have his legal fees paid from the settlement proceeds.

The court dismissed the motion, finding no divergence of interest between the insurer and the insured, and granted the plaintiff's motion for judgment in accordance with the settlement.

The plaintiff brought a motion to strike two paragraphs from the defendants' Statement of Defence in an action for professional negligence against his insurance brokers.

The impugned paragraphs pleaded statistical data regarding the percentage of Ontario motorists who opted for $1,000,000 in third-party liability coverage.

The court found that the statistical data was not a material fact necessary for the defence and violated Rule 25.06(1) by pleading evidence rather than facts.

The motion was granted and the paragraphs were struck.

The appellant appealed a jury verdict regarding a motor vehicle accident where the respondent made a left-hand turn into the path of the appellant's approaching vehicle.

The Court of Appeal found that the trial judge's instructions to the jury were inadequate and erroneous, particularly by suggesting 'competing onuses' rather than emphasizing the heavy onus on a left-turning driver under the Highway Traffic Act.

The trial judge also failed to adequately review the evidence and improperly expressed personal opinions on the appellant's possible negligence.

The appeal was allowed, and a new trial was ordered.