Anne Andrews Juntunen

The plaintiffs sought costs of a motion on a substantial or partial indemnity basis.

The defendants argued that no costs should be awarded due to divided success.

The court noted that relief was consented to, some relief was withdrawn, and success was divided on the contested relief.

The court found no conduct warranting substantial indemnity costs and ordered that the parties bear their own costs.

The plaintiffs brought a motion seeking leave to exceed the seven-hour limit for examination for discovery of the defendants' representative and an order allowing them to move without notice to strike the statement of defence for non-compliance with undertakings.

The court granted leave for an additional four hours of examination, exceeding the seven-hour limit by 2.4 hours, citing the voluminous additional productions and numerous undertakings.

However, the court denied the request to move without notice to strike the defence, emphasizing that striking a defence is an extreme remedy and defendants should have notice and an opportunity to respond to such a motion.

The plaintiff, 688857 Ontario Limited, sought substantial indemnity costs after successfully recovering $58,761 (plus interest, totaling approximately $66,000) in a fidelity insurance claim against Aviva Insurance Company of Canada.

The court determined it was reasonable for the plaintiff to have pursued the action under ordinary procedure, despite the recovery being below the Simplified Procedure threshold, due to the complexity of employee vs. independent contractor issues and bad faith claims.

The court declined substantial indemnity costs, finding no serious misconduct by the defendant, and awarded partial indemnity costs.

The final award was $196,609.08, significantly less than the plaintiff's claim of $240,563, after adjustments for trial inefficiencies, counsel rates, and proportionality.

The plaintiff landlord sued its insurer after the insurer denied a claim under an employee dishonesty policy.

The plaintiff alleged its property manager stole rent money and misused a corporate credit card.

The insurer denied the claim on the basis that the property manager was an independent contractor, not an employee.

The Superior Court of Justice found that the property manager was an employee based on the level of control and the nature of the relationship.

The court awarded the plaintiff $58,761 for the stolen rent but dismissed the credit card claim, finding it was a debtor-creditor arrangement.

The court also dismissed the plaintiff's claims for bad faith and punitive damages, finding the insurer handled the complex claim fairly.

The appellants appealed a motion judge's decision that the insurer had no duty to defend based on exclusions in the Commercial General Liability Policy.

The appellants argued that the care, custody, or control exclusion did not apply because some damage may have occurred after the vines left their care.

The Court of Appeal upheld the motion judge's decision, finding that the pleadings alleged the defect was caused by the appellants' negligent treatment while the vines were in their care, custody, or control, triggering the exclusion.

Additionally, the court found that an alternative exclusion for damage resulting from fungi or spores also applied.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

The plaintiffs, a grapevine grower and a nursery, sought a declaration that their insurer owed them a duty to defend an underlying action in British Columbia regarding allegedly defective vines.

The insurer denied coverage based on the 'Your Product', 'care, custody or control', and 'fungus' exclusions in the Commercial General Liability policy.

The court held that the pleadings in the underlying action clearly triggered the exclusions, relieving the insurer of any duty to defend.

The court also addressed the plaintiffs' request to appoint independent counsel, noting that while no duty to defend existed, specific protective measures would have been ordered to prevent conflicts of interest had the duty been found.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The defendants sought leave to appeal an order refusing their motion for summary judgment regarding a building loss claim.

The motions judge had concluded that summary judgment was not a proportionate means to achieve a just result, as the claim involved issues requiring the weighing of evidence and assessment of credibility, including the application of a covenant to insure.

The Divisional Court dismissed the motion for leave to appeal, finding that the moving parties failed to satisfy either branch of the test under Rule 62.02(4) of the Rules of Civil Procedure.

The plaintiff bank brought a motion for partial summary judgment seeking a declaration that losses it sustained due to an employee's participation in a Ponzi scheme constituted a 'direct financial loss' under its fidelity bond.

The bank had settled multiple third-party claims after victims transferred funds to the bank based on fraudulent representations by the bank's employee.

The court held that the bank received the funds subject to a constructive trust, and suffered a direct financial loss when those funds were credited to unrestricted accounts controlled by the fraudster.

The court found this narrow issue of policy interpretation appropriate for partial summary judgment and granted the declaration.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

The defendants brought a motion to compel the plaintiff to produce three categories of documents in its affidavit of documents.

The plaintiff argued that it was prohibited from producing these documents by United States regulatory and privacy laws, as well as US court protective orders.

The court dismissed the motion, finding that the foreign laws and orders were entitled to comity.

The court held that the plaintiff should not be compelled to violate foreign laws and directed the defendants to seek production or consent directly from the relevant US authorities or courts, with the plaintiff's reasonable cooperation.

The applicant insurer sought appointment of an arbitrator under a trade credit insurance policy after the insured failed to account for recoveries obtained from a delinquent foreign customer.

The respondent argued the dispute arose solely under a later release and assignment agreement that omitted an arbitration clause, and further submitted that delay and the two-year limitation period barred arbitration.

The court held the release did not extinguish the policies, but instead operated in conjunction with them, so the dispute remained one arising under the policies and within the mandatory arbitration clauses.

Applying discoverability under the Limitations Act, 2002, the court found no undue delay and held the arbitration was commenced in time.

The respondent was ordered to appoint an arbitrator by a fixed date, failing which the court appointed one.