Rizzi v. Mavros et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Gillese, J.A.
• Citation: (2007), 224 O.A.C. 293 (CA),2007 ONCA 350
• Date: 02 May 2007

Rizzi v. Mavros (2007), 224 O.A.C. 293 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.019

Debbie Rizzi and Delio Rizzi (plaintiffs/appellant/responding party) v. George Mavros and Thomas Partalas (defendants/respondents/moving parties)

(M35020 (C44688); 2007 ONCA 350)

Indexed As: Rizzi v. Mavros et al.

Ontario Court of Appeal

Gillese, J.A.

May 8, 2007.

Summary:

Rizzi injured her leg attempting to move some metal sheets that were stored in the laundry/storage room of her apartment building. The apartment building was owned by the defendants. Rizzi later developed fibromyalgia. Rizzi and her husband sued the defendants for damages. Causation respecting the fibromyalgia was a central issue at trial. The jury found that Rizzi's fibromyalgia was caused or materially contributed to by the laundry/storage room incident. They assessed substantial damages, but found Rizzi to be 75% contributorily negligent. Rizzi appealed the quantum of general non-pecuniary damages and the assessment of contributory negligence. She requested a variation of the judgment or, alternatively, a new trial. The appeal was perfected in January 2007 and scheduled to be heard in July 2007. In February and April 2007, decisions from the Supreme Court of Canada and the Ontario Court of Appeal, respectively, were issued respecting causation. On reviewing the decisions, the defendants' counsel immediately sought and received instructions to cross-appeal on the issue of causation. The defendants sought leave for an extension of time to cross-appeal on the grounds that the trial judge erred in his instruction to the jury respecting the law of causation.

The Ontario Court of Appeal, per Gillese, J.A., allowed the motion in the interest of justice, but ordered costs to Rizzi in the amount of $4,000.

Practice - Topic 9165

Appeals - Cross-appeals, notices of contention and notices to vary - Filing of - Extension of time - Rizzi injured her leg attempting to move some metal sheets that were stored in the laundry/storage room of her apartment building - The apartment building was owned by the defendants - Rizzi later developed fibromyalgia - Causation respecting the fibromyalgia was a central issue at trial - The jury found that Rizzi's fibromyalgia was caused or materially contributed to by the laundry/storage room incident - They assessed substantial damages, but found Rizzi to be 75% contributorily negligent - Rizzi appealed the quantum of general non-pecuniary damages and the assessment of contributory negligence - She requested a variation of the judgment or, alternatively, a new trial - The appeal was perfected in January 2007 and scheduled to be heard in July 2007 - In February and April 2007, decisions from the Supreme Court of Canada and the Ontario Court of Appeal, respectively, were issued respecting causation - On reviewing the decisions, the defendants' counsel immediately sought and received instructions to cross-appeal on the issue of causation - The defendants sought leave for an extension of time to cross-appeal on the grounds that the trial judge erred in his instruction to the jury respecting the law of causation - The Ontario Court of Appeal, per Gillese, J.A., allowed the motion in the interest of justice.

Cases Noticed:

Hanke v. Resurfice Corp. et al. (2007), 357 N.R. 175; 2007 SCC 7, refd to. [para. 11].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 11].

Barker et al. v. Montfort Hospital et al. (2007), 223 O.A.C.201 (C.A.), refd to. [para. 13].

Kefeli v. Centennial College of Applied Arts and Technology et al., [2002] O.A.C. Uned. 187 (C.A.), refd to. [para. 16].

Bratti v. Wabco Standard Trane Inc. (1994), 25 C.B.R.(3d) 1 (Ont. C.A.), refd to. [para. 17].

Counsel:

Douglas A. Wallace, for the respondents/moving parties;

Karl Arvai, for the appellant/responding party.

This motion was heard on May 2, 2007, by Gillese, J.A., of the Ontario Court of Appeal, who delivered the following endorsement on May 8, 2007.