





CITATION: Cooke v. Toivonen, 2011 ONCA 499

DATE: 20110706


DOCKET: C53430


COURT OF APPEAL FOR ONTARIO


Moldaver, MacPherson and Epstein JJ.A.


BETWEEN


Clyde Cooke and Jennifer Cooke


Plaintiffs (Respondents)


and


Donald C. Toivonen, Tong Thanh Nguyen, Thi Nhac Thai,
          Marcus Collette, Brian W. Price, Fisher Controls Inc., Randall O. Robinson
          and Peggy Robinson


Defendants (Appellants/Respondents)


Siobhan McClelland, for Brian W. Price and Fisher Controls
          Inc., appellants in the appeal


Lori Kruse, for Donald Toivonen, respondent in the appeal


Heard and endorsed: July 5, 2011


On appeal from the judgment of Justice Helen M. Pierce of the
          Superior Court of Justice, dated February 24, 2011.


APPEAL BOOK ENDORSEMENT

[1]

With respect to the motion judge, we are of the view that there was some
    evidence upon which a trier of fact could find that the Cooke vehicle struck
    the Toivonen vehicle before being struck by the Price vehicle. On that
    scenario, there is a basis for making a finding of liability against Toivonen.
    Accordingly, the appeal is allowed, the order of Pierce J. is set aside and the
    motion for summary judgment is dismissed.
[2]

The appellants are entitled to costs below which the parties agree
    should be $7,000 inclusive of disbursements and H.S.T. With respect to the
    appeal, the appellants are entitled to costs fixed at $5,000 inclusive of
    disbursements and H.S.T.