Andrew Clark Murray

The appellant appealed a motion judge's order determining that claims for recovery of legal expenses incurred in connection with a coroner's inquest into the death of a family member were potentially recoverable under section 61(1) of the Family Law Act.

The Court of Appeal found that the motion judge erred in answering the question of law under Rule 21.01(1)(a) without proper pleadings raising the issue.

The pleadings predated the inquest and contained no reference to legal expenses.

The motion judge's answer that the expenses were "potentially recoverable" if they qualified as pecuniary loss did not advance the litigation or satisfy the purposes of Rule 21.01(1)(a).

The appeal was allowed and the order set aside.

The plaintiffs brought a motion under Rule 21.01(1)(a) to determine, before trial, whether legal expenses incurred for their participation in a coroner's inquest into the death of Jonathan Dew are potentially recoverable as pecuniary loss under section 61(1) of the Family Law Act.

The court found the motion was properly brought, as the relevant facts were not in dispute and the determination could shorten the trial or save costs.

Applying the "but for" test and principles from Macartney v. Islic, the court concluded that such legal expenses are indeed potentially recoverable.

The court rejected the defendants' argument that the Coroners Act provides a complete code for costs, finding no conflict with the Family Law Act in this context.

The defendant brought a summary judgment motion seeking dismissal of an action for specific performance and damages arising from a failed real estate transaction, and alternatively sought discharge of a certificate of pending litigation.

The purchaser failed to close on the contractual closing date due to a series of unforeseen issues beyond its control, though the vendor refused to close the following day.

The court held that allegations that the vendor acted in bad faith by relying on the “time of the essence” clause to terminate the contract raised genuine issues requiring a trial.

However, the court concluded the property was acquired for investment purposes and the purchaser failed to establish that the property was unique.

The certificate of pending litigation was therefore discharged while the underlying action proceeded.

The moving defendants sought dismissal of the action on the basis that the parties had reached a binding settlement agreement in May 2007.

The court considered whether the correspondence and negotiations between the parties constituted a legally binding settlement, applying the two-step analysis for determining intention to create legal relations and agreement on essential terms.

The court found the evidence vague and concluded that the parties’ discussions amounted only to an attempt to reach an agreement, with essential terms unresolved.

However, the court held that an earlier unequivocal offer to discontinue the action against one individual defendant personally had been accepted.

The motion was therefore granted only to the extent of discontinuing the claim against that defendant personally, with the remainder of the motion dismissed.

The applicant sought indemnification from an insurer for defence costs incurred in a slip and fall action where the applicant had been added as an additional insured under a contractor’s liability policy.

The respondent insurer argued that the claim was statute‑barred under the Limitations Act, 2002 and that it had no duty to defend the applicant for claims outside the contractor’s policy coverage.

The court held that where there is no clear and unequivocal denial of coverage, the limitation period for a claim for indemnity for defence costs begins when the underlying action is resolved by judgment or settlement.

Applying the “true nature of the claim” analysis to the pleadings and discovery evidence, the court found the essence of the underlying action was negligence in snow and ice removal performed by the insured contractor.

As a result, the insurer owed a duty to indemnify the additional insured for its defence costs.