Andrew H. Ottaway

Three actions were brought arising out of a water loss incident.

The defendant sought a timetable for the conduct of the actions due to the complexity of scheduling examinations for discovery with multiple parties.

The court directed the defendant to provide information regarding the ownership and maintenance of the water heater to determine if Enercare or Reliance Home Comfort are proper parties.

The case conference was adjourned to establish the timetable and determine the status of the actions against the water heater companies.

The court also indicated a willingness to order the three actions to be tried together upon consent of the parties.

The plaintiff, Enercare, brought a motion to strike the defendant Grand HVAC's counterclaim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The counterclaim alleged breach of contract and conversion regarding water heaters Grand HVAC claimed to have purchased from Enercare, and sought relief on behalf of customers.

The court granted the motion, finding the breach of contract and conversion claims lacked necessary material facts, but granted leave to amend.

Claims seeking relief on behalf of third-party customers were struck without leave to amend.

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 plaintiff brought a motion for summary judgment to enforce a settlement agreement against the defendant.

The agreement required the defendant to pay $30,000, failing which he would consent to judgment for liquidated damages of $60,000.

The defendant paid $10,000 but failed to pay the balance.

The court found that the liquidated damages clause was not an unenforceable penalty clause, as the amount was not extravagant or unconscionable compared to the original $200,000 claim.

The court granted summary judgment, holding the defendant liable for $60,000.

The plaintiff brought a motion to strike portions of the defendant's defence and the entirety of the counterclaim.

The parties resolved the motion by consent, leaving only the issue of costs.

The defendant argued that a consent order should not attract costs and that the motion was unnecessary.

The court disagreed, finding that the plaintiff incurred costs to analyze the poorly constructed pleadings and identify what should be struck, work that the defendant's counsel should have done.

However, the court found the plaintiff's claimed costs of nearly $9,000 to be excessive.

Applying the factors in Rule 57.01, the court fixed costs at $5,000 inclusive of HST and disbursements.

The plaintiffs brought a motion for summary judgment in their direct action against the defendant insurer under s. 132(1) of the Insurance Act.

The plaintiffs had previously obtained a consent judgment against their tenant, who negligently caused a fire while repairing his automobile in the attached garage.

The defendant insurer denied coverage under the tenant's policy, relying on a motorized vehicle exclusion.

The court found that the omnibus exclusions, including the motorized vehicle exclusion, applied to the Tenants Legal Liability coverage.

The court also held that the tenant's maintenance of his vehicle constituted 'use' of a motorized vehicle and that there was an unbroken chain of causation between the maintenance and the fire.

The plaintiffs' claim was dismissed.

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 respondent commenced an action alleging he was induced to enter into a shareholders' agreement by fraudulent misrepresentations.

The appellants moved to stay the action under s. 7 of the Arbitration Act, relying on an arbitration clause in the agreement.

The motion judge refused the stay, finding the pith and substance of the claims were tortious rather than contractual.

The Court of Appeal allowed the appeal, holding that the motion judge erred by assuming tort claims and allegations of fraud fall outside the scope of a broadly worded arbitration agreement, and by failing to apply the competence-competence principle which requires jurisdictional challenges to be resolved first by the arbitrator.

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.

The defendant was successful on a motion for particulars and sought costs of $13,511.02.

The plaintiff argued for no costs or $1,500, noting the excessive time spent by the defendant's counsel.

The court considered the defendant's offer to settle, the principle of proportionality, and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The court fixed costs payable to the defendant at $8,000 all-inclusive.

The defendants sought a stay of an action under s. 7 of the Arbitration Act, 1991 based on an arbitration clause in a shareholders’ agreement relating to a restaurant venture.

The plaintiff alleged fraudulent misrepresentation inducing him to enter the agreement, breach of fiduciary duties, and oppressive conduct.

The court held that the misrepresentation and fiduciary duty claims were tort-based and did not rely on the shareholders’ agreement, placing them outside the arbitration clause.

Although the oppression allegations relied on contractual obligations and fell within the clause, the court declined to order a partial stay because most claims were non-arbitrable and separation would create duplicative proceedings.

The motion for a stay was therefore dismissed.

In a motion arising from an action to recognize a North Carolina judgment, the moving party sought dismissal or a permanent stay of an unrelated counterclaim for lack of jurisdiction, or alternatively on forum non conveniens grounds.

The court held that commencing a recognition action did not amount to attornment to Ontario jurisdiction over the unrelated counterclaim.

Applying the Van Breda framework, the court found no real and substantial connection between the counterclaim and Ontario.

In the alternative, the court held that Ontario was forum non conveniens because North Carolina law applied, the witnesses were in the United States, and there was a risk of conflicting judgments.

The defendants brought motions for security for costs against the plaintiffs.

The plaintiffs sought leave to file a supplementary affidavit regarding their alleged impecuniosity, which was served six months after the deadline set by a court-ordered timetable.

The court denied leave, finding that plaintiffs' counsel failed to provide a reasonable, good faith explanation for the delay and had ignored the court's explicit direction to research the evidentiary requirements for impecuniosity before drafting the initial materials.

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.