Andrew H. Ottaway

The appellant appealed a decision by the motion judge upholding a default payment of $60,000 in a settlement agreement, arguing it was unconscionable.

The Court of Appeal found no error in the motion judge's thorough analysis and conclusion that the default payment was reasonable in the circumstances.

The appeal was dismissed with costs awarded to the respondent.

Papp Plastics & Distributing Ltd. brought a motion for a status hearing and to set aside an inadvertent dismissal order of its action against The Boiler Inspection and Insurance Company of Canada (BI&I).

BI&I brought a cross-motion to dismiss the action for delay under Rule 24.01.

The court found the 11-year delay inordinate but excusable, considering the complexity of the case, a second loss event, and BI&I's agreement to consolidate actions and delay discoveries.

The court emphasized that dismissal for delay is an extreme remedy and that a defendant's complicity in delay and lack of demonstrable, non-compensable prejudice are crucial factors against dismissal.

The court granted Papp's motion to set aside the dismissal order and denied BI&I's cross-motion to dismiss for delay, ordering the action to be consolidated with a related Intact Action and a trial date to be scheduled.

The plaintiffs brought a motion for default judgment to recognize and enforce a California judgment against the defendants.

The defendants were noted in default and did not appear at the motion.

The court granted default judgment against one defendant, Ariane Slaught, finding the claim to be a contract debt falling within Rule 19.04(1)(a) of the Rules of Civil Procedure.

The appellant, New Era Development (2011) Inc., appealed a summary judgment decision granting fees of $400,000 to the respondent mortgage broker, Rescon Financial Corporation, and dismissing New Era's counterclaim.

The dispute concerned whether Rescon was entitled to commission upon producing an acceptable commitment letter or only upon actual funding.

The motion judge found the commitment letter acceptable, rejected New Era's defences based on fiduciary duty breach, negligence, and statutory violations, and dismissed the counterclaim.

The Court of Appeal upheld the decision on all grounds, finding no genuine issues requiring trial.

The defendant insurer sought to examine the plaintiffs and their insured under Rule 39.03 of the Rules of Civil Procedure in advance of the plaintiffs' motion for summary judgment.

The court confirmed its jurisdiction to address the procedural order at a case conference.

While acknowledging the insured, Ian Horsefield, possessed relevant evidence regarding the fire's cause, the court dismissed the insurer's request to compel examinations.

It held that the insurer could not re-litigate the facts of the claim, including the circumstances of the fire, which were established by a prior consent judgment against the insured, as the insurer had chosen not to defend the original action.

The "equities" defence under s. 132(1) of the Insurance Act was limited to policy construction and breaches, not the underlying liability or damages.

The plaintiffs, Edward Horsefield and Edward Horsefield as Estate Trustee, sought to enforce a judgment against Economical Mutual Insurance Company under section 132 of the Insurance Act, after Economical denied coverage to their tenant, Ian Horsefield, for fire damage.

Economical brought a motion for further production of documents.

The Master dismissed Economical's motion, finding that the insurer had been uninvolved for nearly 10 years and that granting further production would unduly delay the summary judgment motion.

The Master emphasized the principles of proportionality and timely resolution of cases, concluding that the requested documents' value was uncertain and would cause undue delay.

The plaintiff, Andreas Haas, sought substantial indemnity costs after successfully resisting a motion to stay his action in favour of arbitration.

Haas argued for substantial indemnity based on a Rule 49.10 offer to settle.

The court found that Rule 49.10 did not apply to a successful responding party in a motion and that there was no egregious conduct by the moving parties to warrant substantial indemnity under Rule 49.13 or 57.01.

Considering factors under Rule 57.01, including the complexity of issues and a party's initial refusal to admit, the court fixed costs on a partial indemnity basis at an all-inclusive amount of $25,500.00, to be divided evenly among the three defendants.

In a personal injury action involving statutory accident benefits and long-term disability benefits, the automobile insurer cross‑claimed against the long‑term disability insurer for reimbursement of income replacement benefits paid to the insured.

The cross‑claim alleged unjust enrichment, asserting that the LTD insurer should have paid benefits first.

The court held that under s. 7 of the Statutory Accident Benefits Schedule an automobile insurer may deduct LTD payments only if they are actually received or the insured failed to apply for them.

Because the insured applied for LTD benefits and the LTD insurer denied the claim, the automobile insurer could not deduct hypothetical benefits or recover them through unjust enrichment.

The court found no enrichment, no corresponding deprivation, and no unjust retention, and struck the cross‑claim.

Following a motion seeking dismissal of the plaintiff’s action for non‑compliance with prior court orders and seeking payment of cancellation fees arising from missed defence medical examinations, the court addressed the issue of costs.

The earlier motion had resulted in partial relief: the court declined to dismiss the action but ordered the plaintiff to attend defence medical examinations, pay cancellation fees, and clarify certain undertakings.

Considering the divided success of the parties and the plaintiff’s non‑compliance with prior orders, the court concluded that neither side achieved sufficient success to justify a costs award.

The court also declined to award costs to counsel for the Public Guardian and Trustee due to limited involvement and communication issues leading to the attendance.

The court therefore ordered that there be no order as to costs.