Arie Odinocki

The appellant, Shelly Legault, appealed a trial decision that dismissed her action against TD General Insurance Company for denial of a homeowner's insurance claim following a fire.

The trial judge found that Legault had made a fraudulent declaration regarding additional living expenses (ALE), leading to forfeiture of coverage, and granted TD damages on a counterclaim, plus costs.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant's fraud vitiated the policy, that the payment of professional witnesses was permissible, and that the costs award was within the trial judge's discretion.

The appellant, Shelly Legault, brought a motion within her appeal against TD General Insurance Company.

The motion sought relief from filing all trial transcripts for the appeal record and leave to amend her notice of appeal to include a mid-trial ruling and a costs decision.

The court dismissed the request to be relieved from filing all transcripts, agreeing with the respondent that the full record was necessary given the appellant sought a new trial.

However, the court granted leave to amend the notice of appeal to specify grounds regarding the payment of non-expert witnesses and to appeal the costs award.

This is a costs ruling following a 16-day trial where the defendant, TD General Insurance Company, was the successful party, having proven fraud against the plaintiff, Shelly Legault.

The defendant sought substantial indemnity costs of over $366,000.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, found the plaintiff's conduct (perpetrating fraud, suing for $1M, and prolonging litigation for seven years) warranted substantial indemnity costs.

While acknowledging some excessive time spent by defendant's counsel due to inadequate investigation, the court ultimately fixed the costs payable by the plaintiff to the defendant at $289,609.84, inclusive of fees, disbursements, and HST, balancing reasonableness and proportionality.

The plaintiff sued her home insurer after it denied her claim for a fire loss.

The insurer denied the claim on the basis that the plaintiff committed fraud in her claim for Additional Living Expenses (ALE) by submitting a fake lease and using the rent money for other purposes.

The court found that the plaintiff and her purported landlord engaged in a deliberate scheme to obtain money from the insurer under the guise of rent.

Because the plaintiff made a willfully false statement in her proof of loss regarding the ALE, her entire claim was vitiated.

The plaintiff's action was dismissed, and the insurer's counterclaim for repayment of amounts already paid out was granted.

During a trial regarding an insurance claim denial, the plaintiff brought a mid-trial motion to exclude the testimony of two of the defendant's witnesses.

The plaintiff argued that the defendant's financial compensation of these witnesses for their preparation time and trial attendance constituted an abuse of process.

The court found that the witnesses, who were former employees and agents of the defendant, were 'professional' fact witnesses who required extensive preparation time to review voluminous documents.

The court held that compensating such witnesses for their preparation time is reasonable and does not automatically taint their evidence.

The motion to exclude the testimony was dismissed.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend and indemnify the insureds in an underlying slip and fall action.

The underlying plaintiff slipped on ice on the driveway of premises owned by the insureds, which also served as the head office for their business.

Applying the pleadings rule, the court found that the allegations in the statement of claim triggered coverage under both the applicant's homeowner policy and the respondent's commercial policy.

The court ordered both insurers to share the costs of defending the action equally.

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

The appellants appealed a summary judgment order dismissing their action against TD Bank and Primmum Insurance, which alleged breach of fiduciary duty related to property insurance and mortgage renewal.

They also sought leave to appeal substantial indemnity costs orders.

The Court of Appeal dismissed both the summary judgment appeal, finding no fiduciary duties were owed, the action was res judicata, and statute-barred.

The costs appeal was also dismissed, as the fresh evidence of a settlement offer was inadmissible and had no bearing on the correctness of the costs award.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

The plaintiff brought a summary judgment motion seeking a declaration that her home insurance policy was in effect when a fire destroyed her property, and claiming damages of $398,958.94.

The insurer had terminated the policy for non-payment of premiums months before the fire.

The fire was intentionally set by the plaintiff's husband, who was living at the property.

The court found no genuine issue for trial, concluding that the insurer properly terminated the policy according to its terms.

Furthermore, even if the policy had been in force, the intentional or criminal act exclusion would have barred coverage because the husband was an insured living in the household.

The plaintiff's claims for negligent misrepresentation and negligence were also dismissed.

The motion and action were dismissed.

The defendants successfully moved for summary judgment, dismissing the plaintiffs' action based on alleged fiduciary duties related to home insurance and mortgage renewal.

This endorsement addresses the defendants' claims for costs.

TD Canada Trust was awarded full indemnity costs of $19,035 based on contractual terms in the mortgage.

TD Insurance was awarded substantial indemnity costs of $13,840 for the motion due to the plaintiffs' unreasonable conduct in failing to provide evidence, and partial indemnity costs for the action.

The court adjusted claimed fees and disbursements for both defendants, disallowing duplication of effort, unidentified timekeepers, travel costs, and excessive process server expenses.

The plaintiffs, Dominic and Scarlett Perodeau, sued TD Canada Trust (the Bank) and Primmum Insurance Company (misnomered as TD Insurance) for breach of fiduciary duty following a house fire and uninsured property.

The plaintiffs alleged Primmum breached a fiduciary duty to the Bank regarding home insurance and that the Bank breached a fiduciary duty to them by failing to caution them about the lack of insurance upon mortgage renewal.

Both defendants moved for summary judgment.

The court found no fiduciary duty existed between Primmum and the Bank, nor between the Bank and the plaintiffs, as their relationship was purely commercial.

The court also held that the plaintiffs' claims against the Bank were barred by res judicata, as the issues were previously litigated or ought to have been, and were statute-barred under the Limitations Act.

Furthermore, the claims against Primmum failed due to the effective termination or lapse of the insurance policy.

Consequently, the court granted summary judgment, dismissing all claims against both defendants.

A boat passenger was injured when the boat struck the shoreline and sued both the driver and owner.

The driver was covered under two insurance policies: the owner's TD policy and his own Intact homeowner's policy.

Both policies contained identical "other insurance" clauses declaring themselves excess to other applicable insurance.

TD sought an order requiring both insurers to share equally in the defence and indemnification of the driver.

The application judge dismissed the application, finding TD's policy provided primary coverage based on a "closeness to the risk" analysis.

The Court of Appeal allowed the appeal, holding that the application judge erred by applying the rejected "Minnesota approach" and that the irreconcilable conflict between the identical excess clauses required equal contribution from both insurers.

The defendant, TD Home and Auto Insurance Company, sought full indemnity costs of over $600,000 after successfully defending a breach of contract claim (arson defence) and succeeding on a counterclaim in a three-week jury trial.

The plaintiff, Nazir Azami, conceded costs but argued the amount was excessive and should be on a partial indemnity scale.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure, found that substantial indemnity costs were warranted due to the plaintiff's deceitful conduct and unfounded allegations of misconduct.

However, the court significantly reduced the claimed amount, finding the defendant's docketed hours (over 1,750 combined hours by six lawyers) and claimed disbursements (over $130,000) to be disproportionate and excessive.

The court also noted the defendant's conduct contributed unnecessarily to the trial's length.

Ultimately, the court ordered the plaintiff to pay the defendant's costs in the total amount of $211,500, inclusive of fees, disbursements, and HST.

The plaintiffs brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling a defendant to answer questions refused during an examination for discovery and to attend for a further discovery.

The action arose from a motor vehicle collision in which the plaintiffs alleged negligence, impairment, and negligent entrustment of a vehicle by the corporate defendant.

The court considered the relevance and proportionality of various refused questions relating to the defendant driver’s licensing history, the corporate defendant’s knowledge of his driving record, alcohol consumption prior to the collision, and identification of potential witnesses.

Applying Rules 31.06 and 29.2.03, the court held that most questions were relevant to the pleadings and properly discoverable.

The defendant was ordered to answer specified questions and provide additional witness information.