Stephen Bryan William Chisholm

The appellants appealed the trial judge's dismissal of their action for damages against the City of Hamilton, which arose from a motorcycle accident caused by a pavement discontinuity.

The trial judge had found the City established a defence under the Municipal Act, 2001, by meeting Minimum Maintenance Standards (MMS).

The Court of Appeal found that the trial judge committed a palpable and overriding error in determining the height of the discontinuity, as the City failed to meet its onus to prove compliance with MMS.

The Court also found a palpable and overriding error in the trial judge's assessment of contributory negligence, attributing 100% fault to the respondent.

The appeal was allowed, and judgment was granted for the appellants.

The plaintiff was awarded damages of $28,503.25.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $57,131.45, while the defendants argued for no costs due to the plaintiff's failure to use the simplified procedure under Rule 76, despite the judgment being under $100,000.

The court found it was not reasonable for the action to proceed under ordinary procedure but declined to deny all costs.

Applying the discretion under the Courts of Justice Act and Rule 57.01, and considering factors like proportionality, the modest damages, and inefficiencies, the court fixed partial indemnity costs at $15,000, all inclusive, for the plaintiff.

Following an earlier endorsement finding negligence in the prosecution of the action and ending the proceeding against the defendants, the defendants sought costs of $5,535.87.

The court considered the conduct of the plaintiff and counsel, including procedural errors and inadequate explanation for improperly placing the matter on the trial list.

The court also considered settlement correspondence regarding costs exchanged after the earlier endorsement.

While finding the plaintiff’s conduct warranted sanction, the court held the defendants’ request for more than double their earlier settlement proposal was excessive.

Costs were awarded to the defendants in the reduced amount of $2,500 inclusive.

The plaintiff moved under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action as abandoned and to restore the action.

The proceeding had been commenced by notice of action but no statement of claim was filed within the required 30 days and the notice of action had been served without the statement of claim contrary to Rule 14.03.

The court held that the plaintiff failed to provide a satisfactory explanation for the extensive delay, including a two‑year delay after learning of the dismissal order before bringing the motion.

Applying the factors governing restoration of dismissed actions, the court found inadequate explanation of delay, insufficient evidence of inadvertence, and failure to bring the motion promptly.

The request to add individual police officers as defendants was also barred by the limitation period.