Todd J. McCarthy

The plaintiffs sought partial indemnity costs following a six-week jury trial for personal injuries and Family Law Act claims, where a jury awarded damages of $141,500.

The defendant had made a nominal settlement offer of $7.

The court awarded partial indemnity fees of $159,249.90 plus HST and disbursements, rejecting the defendant's argument that costs should be proportionate to the amount recovered, particularly given the nominal settlement offer and the need to encourage genuine settlement efforts.

The defendant Graham McKeddie moved for summary judgment to dismiss the claim against him, which was based on social host liability.

The plaintiff, a minor injured as a passenger in a car driven by Graham's son, supported the dismissal.

The defendant Echelon General Insurance Company, a party under uninsured/underinsured provisions, cross-claimed against Graham alleging social host liability.

The court applied the framework from Childs v. Desormeaux and the summary judgment principles from Hryniak v. Mauldin.

Despite conflicting evidence regarding the host's interaction with the guests, the court found insufficient evidence to establish a paternalistic relationship or any other basis for a positive duty of care on the host's part as a social host.

The motion for summary judgment was granted, dismissing the claim against the moving defendant.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claims for medical and income replacement benefits following a motor vehicle accident.

The defendant argued the plaintiff's injuries fell within the Minor Injury Guideline (MIG) $3,500 cap and that no evidence supported the income replacement claim.

The court granted the motion, finding the plaintiff failed to put his best foot forward by adducing medical evidence to rebut the defendant's section 44 assessments.

The court concluded there was no genuine issue requiring a trial and dismissed the action.

The plaintiff brought a motion to strike three jury notices prior to the commencement of a trial involving a complex motor vehicle accident resulting in catastrophic impairments.

The plaintiff argued that the anticipated evidence, including competing expert opinions and the plaintiff's brain injury, would be too complex for a jury.

The court dismissed the motion as premature, applying the 'wait and see' approach, holding that it was speculative to determine the complexity of the evidence before it was presented at trial.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was awarded costs of the appeal in the amount of $20,000, inclusive of disbursements and applicable taxes.

The plaintiffs were awarded $35,000 each in Family Law Act damages following a motor vehicle accident.

The defendant argued the plaintiffs should be denied costs because their recovery fell below the $100,000 Simplified Rules threshold.

The court rejected this argument, finding it was reasonable to proceed under the ordinary procedure because the claims were part of larger companion actions involving allegations of contributory negligence.

The court awarded the plaintiffs $30,000 in fees plus disbursements and HST on a partial indemnity scale.

Following a trial in which the plaintiffs succeeded on Family Law Act claims for loss of companionship, guidance, and care, the court determined costs.

The defendant argued that no costs should be awarded because each plaintiff recovered less than $100,000 and should have proceeded under the Simplified Procedure rules.

The court held that where claims formed part of broader litigation involving companion actions and allegations of contributory negligence, it was reasonable to proceed as ordinary actions.

Exercising its discretion, the court rejected the defendant’s objections to the plaintiffs’ bill of costs and awarded partial indemnity costs together with disbursements and additional costs for the costs hearing.

The defendant brought a motion for summary judgment seeking dismissal of a personal injury action arising from a motor vehicle collision.

The defendant argued that the plaintiff’s prior conviction under the Highway Traffic Act for failing to yield the right of way precluded the civil claim and resolved the issue of liability.

The court held that the offence proceeding determined only whether the plaintiff failed to yield and did not address the manner of driving by the defendant.

As issues such as speed, passing behaviour, and whether the defendant had a last clear chance to avoid the collision remained unresolved, genuine issues requiring a trial existed.

The motion for summary judgment was therefore dismissed.

The plaintiffs advanced Family Law Act claims for loss of care, guidance, and companionship following the death of a sibling in a motor vehicle accident.

Liability was not disputed, leaving quantum as the sole issue.

The court reviewed jurisprudence concerning the scope of compensable loss under s. 61 of the Family Law Act, emphasizing that such awards must be assessed objectively and do not compensate grief or emotional anguish.

Considering the unusually close lifelong relationship among the siblings, but distinguishing the case from those involving dependency or daily interaction, the court assessed damages for loss of companionship at $35,000 for each surviving sibling.

The plaintiff settled a motor vehicle accident claim for $190,000 plus costs.

An assessment officer awarded $231,137.93 in costs, which a Superior Court judge reduced to $102,000 on appeal.

The plaintiff sought to appeal the judge's decision to the Court of Appeal.

The defendant moved to quash the appeal, arguing that leave to appeal was required under s. 133(b) of the Courts of Justice Act because the appeal related only to costs.

The Court of Appeal agreed, holding that an appeal from a Superior Court judge's decision reviewing a costs assessment is a final order relating to costs and requires leave to appeal to the Court of Appeal.

Following a successful appeal reducing a costs assessment, the court determined the appropriate costs of the appeal.

The moving parties had substantially reduced the costs awarded to the plaintiffs by the assessment officer through the application of the proportionality principle.

Applying the general rule that costs follow the event, the court awarded the successful appellants partial indemnity costs.

The costs of the appeal were fixed at $7,000 inclusive of HST and disbursements.

The appellants were permitted to set off this amount against the outstanding balance of costs payable to the plaintiff.

The appellant insurer appealed a jury verdict awarding the respondent damages for injuries sustained in a motor vehicle accident.

The appellant argued the trial judge erred by refusing to grant a mistrial after the respondent's counsel made improper comments during his closing address, by giving an inadequate correcting instruction, by allowing an expert to testify beyond his report, and by refusing to order an assignment of statutory accident benefits.

The Court of Appeal dismissed the appeal, finding the trial judge's correcting instruction adequately addressed the improper comments, the evidentiary ruling was fair, and the appellant failed to prove the jury's future care award mirrored the respondent's uncertain accident benefits entitlement.

The appellant insurer appealed a Divisional Court judgment dismissing its application for judicial review of a decision by the Director's Delegate.

The Director's Delegate had found that the two-year limitation period for the respondent to apply for mediation regarding a denied non-earner benefit did not begin to run until the insurer provided the medical report it relied upon in its denial.

The Court of Appeal dismissed the appeal, finding the Director's Delegate's interpretation of the home statute was reasonable and entitled to deference.

Appeal from a Certificate of Assessment of Costs following settlement of a motor vehicle accident action.

The plaintiffs accepted a pre‑trial settlement of $190,000 plus costs to be assessed, after which an assessment officer awarded partial indemnity costs exceeding $231,000.

The defendants appealed, arguing that the assessment officer failed to properly apply Rules 57.01(1) and 58.06 of the Rules of Civil Procedure and failed to consider the principle of proportionality.

The court held that the assessment officer committed errors in principle by misdirecting himself regarding the applicable rules and by failing to address proportionality in light of the settlement amount.

The costs award was reduced to $102,000 inclusive of fees, HST, and disbursements.

The applicant insurer appealed an arbitration decision regarding priority to pay statutory accident benefits following a motor vehicle accident.

The arbitrator had found that the injured mother and her two children were not principally financially dependent on the mother's new partner because their relationship lacked 'permanence' or 'likely permanence,' leading him to use a 12-month pre-accident timeframe.

The Superior Court held that requiring permanency was an error of law and that the arbitrator improperly speculated on the future of the relationship.

The court found that the mother and children were principally financially dependent on the partner at the time of the accident, making the respondent insurer responsible for the benefits.

Insurer priority appeal from an arbitration decision under s. 268(2) of the Insurance Act concerning statutory accident benefits payable after a motor vehicle accident.

The application judge held that the arbitrator erred in law by requiring proof that a cohabiting relationship was permanent or likely to be permanent before using a shorter timeframe to assess principal financial dependency, and further erred by speculating about future relationship failure.

Applying the proper dependency principles, the court found that the two children were appropriately assessed over the seven-week pre-accident period and were principally financially dependent on the insured, and that the adult claimant was also principally financially dependent on him on the whole of the evidence.

The appeal was allowed and priority was shifted to the respondent insurer.

The intervener insurer brought a motion to determine whether it could deny coverage based on an Excluded Driver Endorsement signed by the defendant driver.

The court found that the form used by the insurer was not the standard form approved by the Superintendent of Financial Services, as it failed to list the specific vehicles to which the exclusion applied.

Furthermore, the insurer failed to prove it had delivered a copy of the endorsement to the insured upon renewal.

The court held the insurer could not rely on the unapproved form and is obligated to defend and indemnify the defendant.

The defendant sought leave to appeal an order dismissing his motion for summary judgment in a personal injury action arising from a motor vehicle accident.

The motions judge had declined to grant partial summary judgment or hold a mini-trial, finding that the defendant's role could not be severed from the continuing narrative of the accident without risking inconsistent findings of fact.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the Hryniak framework and no issue of general importance warranting an appeal.

The appellant appealed a jury's damages award and a trial judge's costs order arising from a motor vehicle accident.

The appellant argued the trial judge's interventions during cross-examination rendered the trial unfair and that the jury was misdirected on causation.

The Court of Appeal dismissed the damages appeal, finding the interventions did not compromise trial fairness and the causation instructions were adequate.

However, the Court allowed the appeal regarding costs, setting aside a $60,000 penalty imposed on the appellant's insurer under the Insurance Act.

The Court found no evidence that the insurer failed to attempt to settle the claim expeditiously or that its participation in mediation was a sham.

In this costs endorsement following a personal injury jury trial, the plaintiff sought enhanced costs based on a Rule 49 offer of $300,000 inclusive of interest plus costs.

The defendants argued that the future income loss award should be excluded from the judgment for offer-comparison purposes because of the trust and assignment regime under s. 267.8 of the Insurance Act.

The court rejected that submission, held the judgment remained more favourable than the offer, and awarded partial indemnity costs to the offer date and substantial indemnity costs thereafter.

Applying Rule 57.01 and proportionality principles, the court fixed fees at $240,000 plus applicable GST/HST and allowed disbursements of $124,013.46.