Garisto v. Wang

Garisto v. Wang

The Court allowed the appeal, holding the trial judge erred in principle by finding it unreasonable to proceed under the ordinary procedure despite his own pre‑verdict assessments (jury charge and threshold ruling) that made a recovery over $50,000 a realistic possibility; the reasonableness inquiry must be based on pre‑verdict facts, so the appellant was entitled to costs as assessed by the trial judge and additional appellate costs fixed at $7,500.

Citation
2008 ONCA 389
Parties
Appellant (plaintiff): Pasquale (Vince) Garisto; Respondent (defendant): Seoktai Wang; Respondent (defendant): Toyota Credit Canada
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
16 May 2008
Procedural Posture
Personal Injury (civil) / Appeal From Trial Judge's Costs Order Under Rule 76.13(3) (court of Appeal)
Outcome
Appeal allowed; appellant awarded costs.
Legal Topics
Simplified Procedure (rule 76), Costs Entitlement, Insurance Act S.267.5 Threshold Motion, Contingency Fee Recovery, Jury Instruction
Source Language
English
Civil Procedure Tort Insurance Law Costs Simplified Procedure (rule 76) Costs Entitlement Insurance Act S.267.5 Threshold Motion Contingency Fee Recovery +1 more

Case Brief

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Parties

Pasquale (Vince) Garisto

Appellant (plaintiff)

Seoktai Wang

Respondent (defendant)

Toyota Credit Canada

Respondent (defendant)

Procedural Posture

Personal Injury (civil) / Appeal From Trial Judge's Costs Order Under Rule 76.13(3) (court of Appeal)

Legal Issues

  1. 1 Whether the trial judge erred in depriving the appellant of costs under Rule 76.13(3)
  2. 2 Whether it was reasonable for the appellant to commence or continue the action outside the simplified procedure
  3. 3 Whether the trial judge's pre‑verdict assessments (jury charge and threshold ruling) precluded a finding of reasonableness to proceed under ordinary procedure

Ratio Decidendi

The Court allowed the appeal, holding the trial judge erred in principle by finding it unreasonable to proceed under the ordinary procedure despite his own pre‑verdict assessments (jury charge and threshold ruling) that made a recovery over $50,000 a realistic possibility; the reasonableness inquiry must be based on pre‑verdict facts, so the appellant was entitled to costs as assessed by the trial judge and additional appellate costs fixed at $7,500.

Court Disposition

Appeal allowed; appellant awarded costs.

Orders

  • Allow the appeal and order that the appellant be awarded his costs of the action as assessed by the trial judge.
  • Award the appellant costs of the application for leave to appeal and the appeal itself fixed at $7,500 inclusive of disbursements and GST.