Adam Bucci

Following a trial where the defendants were found liable in nuisance and negligence for flooding the plaintiff's lands, the parties disagreed on the calculation of prejudgment interest (PJI).

The plaintiff sought PJI based on the Canadian bank prime rate compounded annually, while the defendant argued for the statutory rate under s. 128 of the Courts of Justice Act.

The court exercised its discretion under s. 130 of the Act to award compound interest at the prime rate, finding that the statutory rate would under-compensate the plaintiff and provide an unwarranted financial windfall to the defendants who had avoided maintenance costs for decades.

The plaintiff, National Steel Car Limited, brought an action against the City of Hamilton, ArcelorMittal Dofasco Inc., and the Hamilton Port Authority for damages caused by reoccurring flooding to its property from the Kenilworth Avenue Drainage Channel.

The court found the City and AMD liable in nuisance, negligence, and strict liability under the rule in Rylands v. Fletcher for failing to maintain the channel and altering its flow, which caused substantial and unreasonable interference with the plaintiff's property.

The action against the Hamilton Port Authority was dismissed.

The court awarded the plaintiff over $5.2 million in compensatory damages, granted a permanent mandatory injunction requiring the City and AMD to remediate and maintain the channel, and awarded punitive damages of $500,000 against AMD and $400,000 against the City.

The defendants brought a motion to dismiss the plaintiff's slip and fall action, prompted by the plaintiff's daughter advising that her 86-year-old mother, Joanne Weigen, wished to discontinue the lawsuit and had not suffered injuries from the fall.

Concerns about Ms. Weigen's mental capacity and bipolar disorder were raised.

The court, after a cursory examination of the plaintiff and questioning her daughter under oath, appointed the daughter as litigation guardian and approved the dismissal of the action without costs, satisfying the requirements of Rule 7 of the Rules of Civil Procedure.

The plaintiff sought a mandatory interlocutory injunction requiring the defendants to remediate a drainage channel that was allegedly causing flooding on its property.

The plaintiff argued that the defendants had obstructed the channel in breach of a municipal by-law and committed nuisance.

The court found a strong prima facie case but dismissed the motion, holding that the balance of convenience did not favour an injunction given the complexity of the required remediation and that the plaintiff's ten-year delay in seeking relief cast doubt on the prospect of irreparable harm.

The moving party insurer brought a motion under section 128(5) of the Insurance Act for the appointment of an umpire after the parties' appraisers failed to agree on a candidate to value a water loss claim.

The court reviewed the candidates proposed by both the insurer and the insureds, considering their experience in valuation, impartiality, and prior experience as an umpire.

The court appointed George R. Milnes, finding his 30-year career representing both insurers and insureds demonstrated the necessary expertise and impartiality.

The applicants sought judicial review of an umpire's appraisal award regarding contents and additional living expenses following a residential fire.

During the hearing, the respondent insurer conceded it would pay the contents award without requiring a release, and agreed the applicants could litigate the interpretation of the additional living expenses coverage in court without being bound by the umpire's nil appraisal.

Given these concessions, the Divisional Court dismissed the application for judicial review with no costs.

The plaintiff homeowners sued the defendants after their house was damaged by fire.

The defendants, Andrew Grant Design Group Ltd. and Inspired Landscape Solutions Inc. (and Kevin MacDonald), brought motions to amend their third-party claims to substitute 'John Doe Gas Fitter' with Ross Hammond and 'John Doe Manufacturer' with Sunstone Metal Products L.L.C., and to delete Fire Magic Grills.

Sunstone opposed on limitation period grounds.

The court applied discoverability principles under the Limitations Act, 2002, finding that the moving parties exercised due diligence in identifying the correct third parties.

The motions were granted, allowing the amendments, with leave for Sunstone and Hammond to plead a limitations defence at trial.