Record before motion judge was inadequate, deficient and controversial

Insurance – Actions on policies – Practice and procedure

Infant plaintiffs were catastrophically injured when struck by vehicle driven by defendant SP at defendant LP' plaza. Motion judge ordered SP to pay all plaintiffs' partial indemnity costs of $927,934.08, without any contribution from SP, but net of an agreed upon contribution by City of Windsor. SP appealed, challenging motion judge's apportionment of liability for damages as basis for apportioning costs following settlement. Appeal allowed in part and liability for plaintiffs' costs re-allocated. Motion judge erred in undertaking an assessment of respective liability of defendants for plaintiffs' damages in order to apportion costs. Costs were not always apportioned in accordance with co-defendants' respective liability with respect to damages. Judge did not have proper record to carry out apportionment of liability between defendants. Permitting adjudication of parties' respective liability for damages following settlement would be counter to purpose of settlements and trial fairness. Record before motion judge was inadequate, deficient and controversial for purpose of determining liability for damages. Motion judge's apportionment of costs was set aside. Appropriate and fair apportionment of costs was that defendants contribute equally to and are held jointly and severally liable for plaintiffs' costs, given that they contributed equally to settlement.

Bondy-Rafael v. Potrebic (2019), 2019 CarswellOnt 21131, 2019 ONCA 1026, P. Lauwers J.A., K. van Rensburg J.A., and L.B. Roberts J.A. (Ont. C.A.).

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