Alexander D. Pettingill

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The self-represented moving party brought a motion for leave to appeal an unreported order of Koehnen J. dated March 6, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the fixed amount of $5,000.

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

This appeal addressed the application of Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act) to a negligence claim.

Subway sued Trent University for negligence and defamation after Trent's testing of Subway's chicken products was featured on a CBC "Marketplace" broadcast.

The motion judge dismissed Trent's anti-SLAPP motion, finding the negligence claim did not arise from an expression.

The Court of Appeal allowed Trent's appeal, holding that the negligence claim did arise from an expression related to a matter of public interest.

Furthermore, the Court found that Subway's negligence claim lacked substantial merit because no duty of care existed between Trent and Subway, as there was no undertaking of responsibility by Trent in favour of Subway, nor any reliance by Subway on Trent's services or statements.

The motion judge's order was set aside, and Subway's negligence claim was dismissed.

The appellant, a university student who had been banned from campus, initiated over 20 separate legal proceedings against the university, student council, and others.

The application judge declared him a vexatious litigant under s. 140 of the Courts of Justice Act.

The appellant appealed the judgments but failed to identify any errors in the application judge's analysis.

The Court of Appeal dismissed the appeal, finding no error in the conclusion that the appellant is a vexatious litigant.

The court determined costs following two anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The defendant broadcaster, having successfully dismissed the defamation claim against it, was awarded costs on a full indemnity basis, though the requested amount was reduced to $500,000 plus disbursements due to the motion's excessive complexity.

The plaintiff, having successfully defeated the defendant university's novel anti-SLAPP motion regarding a negligence claim, was awarded partial indemnity costs of $222,000, as the university's motion lacked the characteristics of a true SLAPP suit.

The defendants, CBC and Trent University, brought anti-SLAPP motions under s. 137.1 of the Courts of Justice Act to dismiss the plaintiffs' $210 million defamation and negligence action.

The action arose from a Marketplace report alleging the plaintiffs' chicken sandwiches contained only 50% chicken based on DNA tests conducted by Trent University.

The court granted CBC's motion, finding that while the defamation claim had substantial merit, CBC had a valid defence of responsible communication and the public interest in protecting investigative journalism outweighed the plaintiffs' private harm.

The court dismissed Trent University's motion, holding that the negligence claim regarding faulty laboratory testing did not arise from an expression relating to a matter of public interest and was therefore not subject to dismissal under the anti-SLAPP provisions.

The University of Manitoba brought a motion to strike the plaintiff's statement of claim, arguing it was statute-barred and concerned an academic dispute over his 2007 medical school application.

The plaintiff contended his claim was based on the University's attempts to suppress his publications through legal threats, infringing his Charter rights to freedom of expression.

The court found the "pith and substance" of the claim related to the academic decision-making process, which was statute-barred and not within the court's jurisdiction.

The court also determined that the "cease and desist" letter sent to the plaintiff did not constitute a violation of his Charter rights or a sustainable cause of action.

The motion to strike was granted, and costs were awarded to the University.

The Durham Regional Police Association and the Durham Regional Police Senior Officers' Association filed a joint application to determine whether the Dean of Police Education and Innovation is a member of the police service.

The Chief of Police brought a motion seeking party status as an 'affected person' under s. 116 of the Police Services Act, and requesting that the Durham Regional Police Association be denied party status.

The Commission granted the Chief's motion for party status, finding he has a direct interest in the matter, but denied the request to remove the Association as a party, finding it premature.

The appellant appealed an order of a Master dismissing her wrongful dismissal action for delay.

The appellant argued the Master erred by measuring the delay from September 2006 and ignoring intervening factors, such as a previous order excusing delay and an amended statement of claim.

The Divisional Court dismissed the appeal, finding the Master properly considered the entire history of the litigation, correctly applied the law regarding inordinate and inexcusable delay, and properly found the appellant failed to rebut the presumption of prejudice.

The appellant, a university student with Down Syndrome, sued the university for breach of contract and negligent misrepresentation, alleging a failure to accommodate his disability which led to failing grades and his inability to continue his studies.

The motion judge struck the claim, finding the court lacked jurisdiction over academic matters and human rights complaints.

The Court of Appeal held that courts do have jurisdiction over academic disputes if a valid tort or contract claim is pleaded, but affirmed that there is no independent tort for failure to accommodate under the Human Rights Code.

The Court found the pleadings lacked the necessary specificity for breach of contract and negligent misrepresentation, but varied the order to grant the appellant leave to amend his statement of claim.

The appellant university appealed a trial judgment finding it liable for negligent misrepresentation regarding the transferability of its engineering program credits.

The trial judge found that the university's promotional materials misleadingly suggested that transferring to another university after two years would be routine.

The Court of Appeal dismissed the appeal on liability, finding no basis to interfere with the trial judge's factual findings that the representations were misleading, negligently made, and reasonably relied upon by the respondent.

The court also upheld the finding that the respondent acted reasonably to mitigate his damages.

Leave to appeal costs was granted on consent to delete specific paragraphs from the trial judgment.

The appellant appealed an order striking her statement of claim against the university and its officials for negligent advice.

The motion judge found the claim was in pith and substance an academic dispute.

The Court of Appeal agreed, finding the negligence claim regarding advice on deregistration was part and parcel of the academic dispute.

The court declined to transfer the proceeding to the Divisional Court for judicial review.

The respondents' cross-appeal was allowed to amend the motion judge's order, which had inappropriately fettered the Divisional Court's discretion to consider the defence of delay.

The respondents settled a personal injury claim arising from a bar fight and subsequently brought an action against the appellant for contribution and indemnity under the Negligence Act.

The trial judge found the appellant 80% liable and ordered him to pay $380,000.

On appeal, the Court of Appeal upheld the finding of liability but held that the trial judge erred in apportioning fault without regard to the findings in the first trial.

The Court reduced the appellant's contribution to $162,555.50 to ensure the respondents did not obtain a better result in the second action than they could have in the first.

The appellant sued multiple defendants for malicious prosecution, defamation, and other claims arising from a child sexual abuse investigation that resulted in criminal charges which were later stayed.

After his civil action was dismissed at trial, he appealed, primarily arguing ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, holding that the ineffective assistance claim was an abuse of process because the appellant had already sued his trial counsel for negligence and settled that action.

The court also rejected arguments that the trial judge should have ordered a mistrial and that the trial judge erred in dismissing the defamation claim against the child's grandmother.

The respondents in a civil appeal brought a motion to quash the part of the appeal that relied on the alleged incompetency of the appellant's trial counsel.

The moving parties argued that incompetence of counsel is not a recognized ground for a civil appeal, that the appellant had already recovered damages from his former lawyer, and that the appeal lacked merit.

The Court of Appeal dismissed the motion to quash, finding that the ground relating to a mistrial was sufficiently interrelated with the other grounds and should be considered by the panel hearing the appeal.

The court also directed that the appellant's former counsel be served with the materials and given an opportunity to respond.

Following release of the court's earlier appeal decision, the respondents asked the court to reconsider based on an alleged significant factual error concerning the timing of an insurer's insolvency.

The court acknowledged the factual error but held it did not affect the interpretation of s.4.2 of the share purchase agreement or the ultimate allocation of liability for post-closing assessments.

The court maintained that the respondents remained liable for assessments levied in 1994 and 1995 and thereafter, whether or not calculated on the sold insurer's premium income.

The earlier appeal decision was left unchanged.

Appeal from a trial judgment concerning interpretation of a share purchase agreement for the sale of a life insurance company.

The dispute was whether post-closing industry-wide compensation assessments, calculated using pre-closing premium income, were payable by the vendors or the purchasers.

The court held that the assessments were liabilities arising in the years they were levied, not in the years used to calculate them, and that the agreement required the purchasers to pay them.

The court further held that the negotiation evidence supported that reading and that the general indemnity clause did not displace the specific allocation in the contract.

Appeal allowed, trial judgment set aside, and the action dismissed.