



COURT OF APPEAL FOR ONTARIO

CITATION: Mahoney v. Sokoloff, 2015 ONCA 390

DATE: 20150601

DOCKET: C59700

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Wayde
    Mahoney, Kevin Mahoney, Carol Mahoney,

Sean
    Mahoney and Morgan Mahoney

Plaintiffs (Appellants)

and

Wendy Sokoloff and Sokoloff Lawyers

Defendants (Respondents)

Bryan D. Rumble, for the appellants

Michael R. Kestenberg, for the respondents

Heard and released orally: May 15, 2015

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated October 30, 2014.

ENDORSEMENT

[1]

The appellants appeal from the summary judgment granted by Belobaba J.
    of the Superior Court of Justice dated October 30, 2014.  The motion judge held
    that the core reason for granting summary judgment was the appellants
    failure to put forward any evidence of losses or damages sustained in respect
    of i) the proposed claims of Wayde Mahoneys brothers, Sean and Morgan, for
    damages under the
Family Law Act
, R.S.O. 1990, c. F.3 (the 
FLA
)
    for their loss of Waydes care, guidance and companionship due to his injuries;
    and ii) the respondents delayed application on behalf of Wayde Mahoney for
    benefits under the catastrophic impairment designation.  The appellants submit
    that there are genuine issues requiring a trial on both matters and that
    summary judgment, therefore, should have been denied.

[2]

We see no genuine issue for trial pertaining to the appellants alleged
    losses on the second ground.  It is undisputed that the action was eventually
    settled for the amount of $1.4 million.  The benefits available under the catastrophic
    impairment designation were retroactive with compound interest.  In these
    circumstances, and absent any evidence from them to the contrary, the
    appellants failed to demonstrate that they suffered any damages as a result of
    the respondents alleged delay in applying for the appropriate catastrophic
    designation that were not fully compensated for under the settlement.

[3]

We reach a similar conclusion concerning the suggested
FLA
claims of Wayde Mahoneys brothers.  The appellants complain that, in their
    summary judgment materials, the respondents failed to challenge specifically
    the appellants
FLA
-based claims for damages.  In these circumstances,
    they say, they were not obliged to lead evidence of these damages on the
    summary judgment motion.

[4]

We disagree.

[5]

The appellants submission, in our view, misses the point.  Apart from
    the matter of the respondents explanation for not advancing these
FLA
claims from the outset, the appellants were obliged in responding to the motion
    for summary judgment to put their best foot forward in respect of all their
    claims and to lead some evidence of the foundation for the brothers claimed losses
    under the
FLA
.  They did not do so.  As a result, on this record, the
    motion judge did not err in concluding that no genuine issue for trial arose
    regarding these claims.

[6]

Accordingly, the appeal is dismissed.  The respondents are entitled to
    their costs of the appeal in the agreed amount of $7,500, inclusive of
    disbursements and all applicable taxes.

K.M. Weiler J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


