W. Colin Osterberg

The plaintiffs and defendant settled a motor vehicle accident claim for $732,835 just prior to trial, leaving costs to be determined by the court.

The plaintiffs sought partial indemnity costs of approximately $572,000, while the defendant proposed approximately $394,000.

The court noted that liability was clear from the outset, yet the defendant failed to admit liability and delayed making an offer to settle until two weeks before trial, unnecessarily increasing the plaintiffs' costs.

After adjusting for excessive hourly rates for students/clerks and some excessive preparation time, the court fixed the plaintiffs' partial indemnity costs at $310,000 plus HST for fees and $160,000 inclusive of HST for disbursements.

The defendant moved for summary judgment to dismiss a personal injury claim arising from a motor vehicle accident.

The central issue was whether the plaintiff, Mr. Mailloux, and his derivative claimants were barred from recovery under the Compulsory Automobile Insurance Act and the Insurance Act due to Mr. Mailloux driving without a valid license and insurance.

The court found that Mr. Mailloux was the de facto lessee of the vehicle, knew he was unlicensed and uninsured, and that the insurance policy obtained by Mrs. Mailloux involved material misrepresentations and non-disclosures, rendering it void ab initio.

Consequently, Mr. Mailloux was in breach of the CAIA and barred from recovery, leading to the dismissal of all claims.

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.

The defendant insurer brought a motion for summary judgment arguing that the plaintiffs failed to meet the corroboration requirement under the OPCF 44R Family Protection Coverage Endorsement for accidents involving unidentified vehicles.

The plaintiffs alleged the driver was forced off the road by a red pickup truck that was never identified, relying on tire marks and expert reconstruction evidence as physical corroboration.

The court held that “physical evidence” under the endorsement does not need to originate from the unidentified vehicle itself, provided it indicates the involvement of another vehicle.

Tire marks consistent with evasive action could constitute corroborative physical evidence.

Given conflicting expert opinions regarding accident reconstruction, the court found a genuine issue requiring a trial and declined to resolve credibility issues on summary judgment.