Albert Wallrap

The defendants brought a motion to set aside a default judgment of $124,474.66 obtained by the plaintiff.

The action arose from a physical altercation between neighbours in an apartment building.

The court found that while one defendant was validly served with the statement of claim, the other was not, and neither was served with the motion for default judgment.

Applying the five-factor test for setting aside a default judgment, the court concluded that the interests of justice warranted granting the motion, despite the apparent weakness of the proposed defence.

The default judgment was set aside on the condition that the defendants pay the plaintiff's costs of $19,131.14 for the default judgment proceedings.

The defendants, Toronto Hydro and the City of Toronto, sought leave to issue third-party claims against the plaintiffs (a building owner and two tenants) and various former owners and property managers for contribution and indemnity following a fire in a hydro vault.

The plaintiffs opposed the motions, arguing that covenants to insure in their leases shielded them from liability to each other, rendering the third-party claims legally untenable under the Supreme Court's decisions in T. Eaton Co. and Giffels.

The court granted leave in part, allowing claims against parties in capacities not shielded by the insurance covenants (e.g., former owners, property managers), but dismissed the motions regarding claims against the landlord and tenant in their capacities governed by the leases.

The court also rejected the argument that covenants to insure should be treated as exclusion clauses subject to public policy exceptions.

On appeal from a trial judgment involving an oil tank leak at a residential property.

The trial judge found Thompson Fuels negligent for failing to conduct required comprehensive inspections and water testing of fuel oil tanks, but found the Technical Standards and Safety Authority (TSSA) not liable.

The plaintiff was found 60% contributorily negligent and Thompson Fuels 40% liable.

The appellate court upheld the trial judgment with one adjustment regarding betterment related to a line of credit.

The court addressed complex issues including the enforceability of exclusion clauses in consumer contracts, the application of regulatory obligations to civil liability, Pierringer agreements, and the calculation of damages in environmental contamination cases.

The court addressed three post-trial motions: a set-off dispute under a Pierringer agreement, the plaintiff's motion to vary judgment to include a common law negligence claim for an environmental order, and the defendant Thompson Fuels' motion to vary judgment based on alleged errors.

The court ruled that set-off from the Pierringer agreement would only apply if the settlement exceeded the plaintiff's total loss (100% of damages caused by defendants, not just the non-settling defendant's apportioned share).

Both Rule 59.06(1) motions were dismissed, as they sought to re-argue the case or correct judicial reasoning rather than accidental slips or omissions.

The court addressed three post-trial motions: a set-off dispute under a Pierringer agreement, the plaintiff's motion to vary judgment to include a common law negligence claim for an environmental order, and the defendant Thompson Fuels' motion to vary judgment based on alleged errors.

The court ruled that set-off from the Pierringer agreement would only apply if the settlement exceeded the plaintiff's total loss (100% of damages caused by defendants, not just the non-settling defendant's apportioned share).

Both Rule 59.06(1) motions were dismissed, as they sought to re-argue the case or correct judicial reasoning rather than accidental slips or omissions.

The plaintiff brought a motion to validate service of a statement of claim on the defendant Cronnox as of April 30, 2014.

Cronnox consented, but two non-parties—Cronnox's insurer (who denied coverage) and Cronnox's former lawyer—opposed the motion, arguing service occurred later, which would affect limitation periods for third-party claims and a related coverage dispute.

The court held the non-parties lacked standing as their economic interests were not directly affected by the order.

Regardless, the court found service was properly effected on April 30, 2014, and validated it accordingly.

The plaintiff's residential oil tank leaked, causing a significant environmental spill into Sturgeon Lake.

The plaintiff sued the fuel distributor (Thompson Fuels), the regulatory authority (TSSA), and the tank manufacturer (Granby) for negligence.

The court found Thompson Fuels 40% liable for failing to conduct a mandatory comprehensive inspection before delivering fuel.

The plaintiff was found 60% contributorily negligent for improper installation, failing to maintain the tank, introducing water into the tank, and delaying reporting the leak.

Claims against the TSSA and Granby were dismissed.

The court also assessed the reasonableness of the extensive remediation costs and dismissed the plaintiff's claim for statutory contribution under the Environmental Protection Act.

The Personal Insurance Company brought a summary judgment motion seeking a declaration that Linda-Sue Pearce was the owner of a truck involved in a motor vehicle collision, and an order dismissing the action against Personal.

The court found that Pearce, as the registered owner, failed to rebut the presumption of ownership, despite arguments that her son, Trevor James Middleton, was the true owner.

The court granted the declaration that Pearce was an owner of the truck and dismissed the action against Personal, as Pearce's own insurance policy with Wawanesa Insurance would apply.

The plaintiff brought a motion for leave to amend his Statement of Claim to add a claim for contribution and indemnity under the Environmental Protection Act, following an Environmental Review Tribunal decision reducing a municipal cleanup order against him.

The defendants opposed the motion, arguing the proposed amendments were statute-barred and untenable.

The court granted leave to amend, finding that the legal issues regarding limitation periods and statutory interpretation were novel and not plainly and obviously untenable, and that the defendants would not suffer non-compensable prejudice.

The defendant, a California corporation that dissolved after allegedly supplying a defective generator but before the plaintiff commenced its action, brought a motion to dismiss the action against it for lack of legal capacity to be sued in Ontario.

The court applied conflict of laws principles, determining that while capacity to be sued is procedural, the legal status of a foreign entity is a substantive issue governed by the law of its place of incorporation.

Because the California Corporations Code permits dissolved corporations to continue to exist for the purpose of defending actions, the court found the defendant had the legal capacity to be sued in Ontario and dismissed the motion.

The plaintiff sought approximately $2.6 million in damages against a contractor and an acrylic sheet manufacturer arising from alleged defects in the design, manufacture, and installation of a skylight system for a horse riding arena.

The plaintiff alleged negligent design, negligent manufacture of acrylic sheets, negligent misrepresentation in product literature, and spoliation of evidence.

After a lengthy trial, the court found no negligence or breach of contract by the contractor and no negligence in the manufacture of the acrylic sheets by the manufacturer.

Although the manufacturer should have disclosed certain test results regarding light transmittance, the plaintiff failed to prove causation.

The court further held the plaintiff fundamentally breached the contract and was contributorily negligent by refusing to install an automatic controller and by failing to implement recommended ventilation and heating measures, and also failed to mitigate its losses.

At the commencement of a lengthy construction dispute trial, the defendants sought to set aside an earlier bifurcation order so that liability and damages could be tried together, while the plaintiff moved to strike the defendants’ jury notice.

The court exercised its inherent jurisdiction to manage the trial process and set aside the earlier order, finding that trying all issues together would avoid multiplicity of proceedings and that evidentiary overlap justified a single trial.

The court also held that the case involved exceptionally complex factual, technical, and legal issues, including numerous expert reports, extensive documentary evidence, multiple causes of action, crossclaims, and potential apportionment under a Pierringer agreement.

Given these complexities, the court concluded that justice would be better served by a judge-alone trial rather than a jury.

The jury notice was therefore struck and the matter ordered to proceed on all issues before a judge.

The moving party defendant brought a motion to withdraw deemed admissions resulting from its failure to respond to a Request to Admit served nearly two years prior.

At the time of service, the defendant was unrepresented and insolvent, but subsequently obtained insurance coverage and new counsel.

The court applied the three-part test for withdrawing admissions and found that the withdrawal raised a triable issue, there was a reasonable explanation for the change in position, and the plaintiff would not suffer non-compensable prejudice.

The court granted the motion to withdraw the admissions and allowed the defendant to amend its pleadings, with no order as to costs.

The defendant, Frank Jonkman and Sons Limited, brought a motion to withdraw deemed admissions resulting from its failure to respond to a Request to Admit served nearly two years prior.

At the time of service, the defendant was unrepresented and insolvent.

The defendant subsequently obtained insurance coverage and new counsel, who discovered the unresponded Request to Admit shortly before trial.

The court applied the three-part test under Rule 51.05 and granted leave to withdraw the admissions, finding that the change raised a triable issue, there was a reasonable explanation for the change in position, and the plaintiff would not suffer non-compensable prejudice.

The defendant was also granted leave to amend its pleadings.