Andrew Lawrence Mercer

The court considered whether damage to Mr. Hood’s seasonal cabin was caused by an insured peril (windstorm) or by settling, which was excluded under the insurance policy.

After reviewing expert evidence and witness affidavits, the court found that a windstorm was the direct cause of the loss and that the exclusion for settling did not apply.

The court declared the loss covered under the policy.

On a summary judgment motion arising from a motor vehicle accident allegedly caused by an intoxicated nightclub patron, the court held there was a genuine issue requiring a trial on whether the corporate nightclub operator overserved alcohol and thereby incurred commercial host liability under s. 39 of the Liquor Licence Act and the common law.

However, the court dismissed the claims against the related property owner and the individual directors, finding no tenable basis to pierce the corporate veil, no evidence connecting the property owner to the nightclub's operation, and no personal duty of care on the directors to ensure adequate insurance.

The court also held that the directors' insurance-related personal negligence claim was statute-barred.

Claims for disgorgement based on waiver of tort could not stand as an independent cause of action, subject only to any remedy the trial judge might consider against the nightclub operator if liability is proven.

The appellant appealed the dismissal of his challenge to his involuntary status and incapacity finding by the Consent and Capacity Board, arguing abuse of process due to alleged illegal detention and recertification after initial Board decisions in his favour.

The Court of Appeal dismissed the appeal, finding no abuse of process or res judicata, as new evidence of the appellant's deteriorating condition and previously unconsidered criteria justified the subsequent certification process.

The court emphasized the flexibility of the abuse of process concept in administrative proceedings and the importance of considering all circumstances, especially new and significant evidence, when determining capacity and involuntary status under the Mental Health Act.

The plaintiffs brought a motion for summary judgment in an action alleging civil conspiracy and fraud related to the purchase of used vehicles.

At the scheduled special appointment hearing, the court adjourned the motion and related evidentiary motions because the parties failed to comply with the Rules of Civil Procedure and regional practice directions regarding the filing of materials, compendia, and confirmations.

The court emphasized that judges require properly organized materials to prepare for hearings and directed the parties to comply with all filing requirements before rescheduling.

The plaintiff, a municipal councillor, brought two defamation actions against several defendants regarding statements made on social media and at a town council meeting.

The defendants moved to dismiss the actions under the anti-SLAPP provisions of the Courts of Justice Act (s. 137.1).

The court found that the expressions related to a matter of public interest.

The plaintiff failed to satisfy the merits-based hurdle, as the defendants had valid defences of justification, fair comment, and qualified privilege.

Furthermore, the plaintiff failed the public interest hurdle, as she could not demonstrate that the harm she suffered outweighed the public interest in protecting the defendants' expressions.

Both actions were dismissed.

The plaintiffs moved for summary judgment seeking a declaration that the defendant insurance broker held $475,000 in trust for them.

The funds had been wired by the plaintiffs in support of an application to establish a captive insurance company, but were returned to the defendant after the application failed.

The defendant attempted to retain the funds as an equitable set-off against the substantial debts of a third-party company, mistakenly believing the funds belonged to that third party.

The court found that the funds belonged solely to the plaintiffs and that the defendant failed to establish any basis for equitable set-off.

The motion was granted and the funds were ordered returned.

The plaintiff appealed an order dismissing his personal injury action for delay under Rule 24.01(1)(c).

The action had been ongoing for nearly 10 years with virtually no steps taken, no discoveries held, and the action not set down for trial.

The Court of Appeal upheld the motion judge's finding that the presumption of prejudice arising from the lengthy delay had not been rebutted, as the plaintiff filed no evidence to show the absence of prejudice or to support his contention that he was the only material witness.

The appeal was dismissed with costs.

The insured sought reimbursement of defence costs incurred in responding to Human Rights Tribunal proceedings, arguing that information disclosed in a policy renewal application constituted notice of a claim under a “claims made and reported” liability policy.

The court held that the disclosure merely referenced the retention of outside counsel and did not objectively communicate a claim or potential claim to the insurer within the policy period.

The insurer had no duty to inquire further upon receiving the renewal application, as the obligation to provide notice rested on the insured.

The late notice deprived the insurer of opportunities to investigate, control the defence, and attempt early resolution, constituting actual prejudice.

Relief from forfeiture under s. 129 of the Insurance Act was unavailable because timely notice is a condition precedent to coverage under claims-made-and-reported policies.

In a complex Commercial List case management proceeding involving multiple condominium corporations, lenders, and other parties arising from alleged fraud related to loans arranged for condominium corporations, the court addressed whether a previously scheduled separate hearing of a threshold issue should proceed.

The threshold issue concerned whether certain loans were enforceable against the condominium corporations.

Several parties withdrew their earlier consent to bifurcate the proceedings under Rule 6.1.01 of the Rules of Civil Procedure.

The court held that, absent unanimous consent, it lacked jurisdiction to compel a separate hearing of the threshold issue and therefore cancelled the proposed hearing.

The court instead directed that the actions proceed expeditiously to a consolidated trial with a structured discovery process and encouraged mediation.

Following a successful application concerning the disposition of funds held in trust, the court addressed the costs payable to a responding party that had been unsuccessful on the merits but was entitled to costs under the terms of the earlier order.

The party sought costs on a substantial indemnity basis or alternatively on a partial indemnity basis, while the opposing party argued that only partial indemnity costs were appropriate and challenged the hourly rates claimed.

The court held that substantial indemnity costs were not justified but accepted the reasonableness of the partial indemnity hourly rates claimed.

However, the total amount sought was considered higher than the reasonable expectations of the party exposed to the costs award.

The court therefore fixed an all-inclusive costs award on a reduced partial indemnity basis.

The applicant law firm, Thomas Gold Pettingill LLP, applied for a declaration regarding $61,351.64 held in trust from a settlement, which was claimed by both the respondent former client, Ani-Wall, and the respondent former law firm, Cassels Brock.

The funds represented an unpaid legal account.

The court found that while the applicant lawyer breached a personal undertaking and could not unilaterally bind the client to an equitable assignment, the former law firm was entitled to a charging lien over the funds.

The court held that the charging lien was not subject to a limitation period, unlike the underlying contract claim.

The court ordered the funds to be subject to the charging lien but allowed the former client to seek an assessment of the accounts due to special circumstances.