



COURT OF APPEAL FOR ONTARIO

CITATION: Smith v. Safranyos, 2018 ONCA 996

DATE: 20181206

DOCKET: C63133 and C63175

Strathy C.J.O., Roberts and Paciocco JJ.A.

BETWEEN

Madeline Smith, Laura Smith, and Randy Smith,
    minors by their Litigation Guardian, Florence Smith, and Florence Smith
    personally, Thomas Smith, Thomas Smith Jr. and Madeline Smith, Edward Smith,
    Gladys Lianos, and George Lianos

Plaintiffs (Respondents)

and

Dawn Marie Safranyos
,
Daryl S. McHugh
,
    the
City of Hamilton
, and Cumis Insurance

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Alexandra Safranyos and Victoria Safranyos, both
    infants under the age of 18 years by their Litigation Guardian, Shelly Lalonde,
    and Shelly Lalonde personally and Cynthia Green

Plaintiffs (Respondents)

and

Dawn Marie Safranyos
,
Daryl S. McHugh
,
    and the
City of Hamilton

Defendants (
Appellants
/
Respondent
)

Barry A. Percival and Grant D. Bodnaryk, for the
    appellant, Daryl S. McHugh

David A. Zuber, James B. Tausendfreund and Marcella Smit,
    for the appellant, the City of Hamilton

Robert J. Hooper and Mary Grosso, for the respondents,
    Madeline Smith, Laura Smith, Randy Smith, Florence Smith, Thomas Smith, Thomas
    Smith Jr., Madeline Smith, Edward Smith, Gladys Lianos, and George Lianos (the
    Smith respondents)

M. Claire Wilkinson, for the respondents, Alexandra
    Safranyos, Victoria Safranyos, Shelly Lalonde, and Cynthia Green (the
    Safranyos respondents)

Jack F. Fitch and Ryan Khan, for the respondent, Dawn
    Marie Safranyos

Heard: March 27, 2018

On appeal from the judgment of Justice Kim A.
    Carpenter-Gunn of the Superior Court of Justice, dated December 7, 2016
    (unreported).

REASONS FOR DECISION ON COSTS

[1]

Dawn Marie Safranyos (Safranyos) and the City
    of Hamilton (Hamilton) acknowledge that as a result of this courts order on
    appeal, liability for the plaintiffs damages should be apportioned two-thirds
    to Safranyos and one-third to Hamilton. Having considered the parties written
    submissions with respect to the costs of trial and appeal, we make the
    following order:

a.

The order for the payment of costs by Daryl S.
    McHugh (McHugh) is set aside. The plaintiffs costs, fixed by the trial judge
    at $339,000 for the Smith plaintiffs and $256,000 for the Safranyos plaintiffs,
    shall be paid two-thirds by Safranyos (Safranyos) and one-third by Hamilton;

b.

Safranyos shall pay McHughs costs of trial in
    the amount of $69,557.62, inclusive of HST and disbursements;

c.

Safranyos shall pay McHughs costs of the appeal
    in the amount of $13,225.48, inclusive of HST and disbursements;

d.

Hamilton shall pay Safranyos costs of the
    appeal in the amount of $8,732.98, inclusive of HST and disbursements;

e.

Hamilton shall pay the Smith plaintiffs costs of
    the appeal in the amount of $32,516.63, inclusive of HST and disbursements; and

f.

Hamilton shall pay the Safranyos plaintiffs
    costs of the appeal in the amount of $24,716.81, inclusive of HST and
    disbursements.

[2]

We reject the submission that McHugh should be
    deprived of all his costs of the trial based on his conduct. We have concluded
    that McHugh bore no responsibility for the accident and there is no basis on
    which to deprive him of costs.

[3]

That said, McHugh has made no claim against the
    plaintiffs for his costs, either of trial or of appeal. In these circumstances,
    we have made a
Sanderson
order against Safranyos with respect to
    one-third of McHughs costs of trial and appeal. It was reasonable for the
    plaintiffs to join McHugh as a defendant and Safranyos actively pursued
    McHughs liability at trial and on appeal. We do not, however, increase
    Safranyos liability for McHughs costs due to McHughs tactical decision not
    to pursue the costs he would otherwise have been entitled to claim against the
    plaintiffs.

[4]

We have not made a
Sanderson
order
    against Hamilton in respect of the balance of McHughs costs. As McHugh
    concedes, Hamilton made no argument at trial or on appeal relating to McHughs
    liability. Moreover, the causes of action against Hamilton and McHugh were
    unrelated  Hamiltons liability was predicated on non-repair and was unrelated
    to McHughs alleged liability. In our view, it is not in the interests of
    justice to require Hamilton to pay any portion of McHughs costs.

George R. Strathy C.J.O.

L.B. Roberts J.A.

David M. Paciocco
    J.A.


