Garisto v. Wang et al.,

• Jurisdiction: Ontario
• Judge: Sharpe, Gillese and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2008 ONCA 389,(2008), 236 O.A.C. 134 (CA)
• Date: 16 May 2008

Garisto v. Wang (2008), 236 O.A.C. 134 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MY.067

Pasquale (Vince) Garisto (appellant/plaintiff) v. Seoktai Wang and Toyota Credit Canada (respondents/defendants)

(C47963; 2008 ONCA 389)

Indexed As: Garisto v. Wang et al.

Ontario Court of Appeal

Sharpe, Gillese and Blair, JJ.A.

May 16, 2008.

Summary:

The plaintiff was successful in his personal injury action, but was awarded only $20,000 general damages by the jury. The trial judge, pursuant to rule 76.13(3) deprived the plaintiff of costs on the ground that it was not reasonable for the plaintiff to commence or continue his action outside of the rule 76 simplified procedure regime. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal and awarded the plaintiff costs at trial as provisionally assessed by the trial judge. The trial judge erred in finding that it was unreasonable for the plaintiff to commence or continue his action rather than using the simplified procedure regime.

Practice - Topic 7025

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Failure to agree or use less expensive or simplified procedure - The plaintiff was successful in his personal injury action, but was awarded only $20,000 general damages by the jury - The trial judge, pursuant to rule 76.13(3) deprived the plaintiff of costs on the ground that it was not reasonable for the plaintiff to commence or continue his action outside of the rule 76 simplified procedure regime - Rule 76.13(3) provided that a plaintiff was not entitled to costs where damages awarded were less than $50,000 and it was not reasonable for the plaintiff to have commenced or continued the action under the ordinary procedure - The Ontario Court of Appeal held that the trial judge erred in finding it unreasonable for the plaintiff to commence or continue his action - The court awarded the plaintiff the costs provisionally assessed at trial - The trial judge's finding respecting reasonableness conflicted with his jury charge, which contemplated damages exceeding $50,000 if the jury accepted the plaintiff's version of events, and his earlier rejection of the defendants' threshold motion that the plaintiff had not suffered a permanent serious impairment of an important physical, mental or psychological function - The court noted precedent where other judges had taken a more generous approach where a plaintiff had credible medical evidence to support a claim for an amount in excess of the $50,000 simplified procedure limit.

Cases Noticed:

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 16].

Kincses v. 32262 B.C. Ltd. (1998), 39 C.P.C.(4th) 384 (Ont. Gen. Div.), refd to. [para. 17].

Branco et al. v. Allianz Insurance Co. of Canada et al., [2004] O.T.C. 1011 (Sup. Ct.), refd to. [para. 22].

Wicken v. Harssar et al., [2002] O.T.C. 1067; 24 C.P.C.(5th) 164 (Sup. Ct.), refd to. [para. 22].

Snider v. Salerno, [2002] O.T.C. 284 (Sup. Ct.), refd to. [para. 22].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 76.13(2), rule 76.13(3) [para. 11].

Authors and Works Noticed:

Watson, Garry D., and McGowan, Michael, Ontario Civil Practice 1999 (1998), p. 1144 [para. 17].

Counsel:

David M. Schell, for the appellant;

Mark Elkin, for the respondents.

This appeal was heard on April 24, 2008, before Sharpe, Gillese and Blair, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Sharpe, J.A., and released on May 16, 2008.