Arnold Brian Schwisberg

The plaintiffs, Dung Truong and Thuan Nguyen, sued their insurer for payment of six pieces of jewellery allegedly stolen in Vietnam.

The insurer denied the claim, arguing the plaintiffs failed to prove ownership, the theft occurred, or the value of the loss, and that the jewellery was contraband.

The court found that the insurance contract did not require re-proving ownership post-loss, and that the plaintiffs had an insurable interest.

The court also found the theft occurred as described and rejected the "contraband" defence.

The court awarded the plaintiffs the insured value of the jewellery and punitive damages, finding the insurer's denial based on an unreasonable interpretation of the contract constituted bad faith.

The third party moved to strike several paragraphs of the defendant's affidavit filed for a simplified procedure trial.

The moving party argued the paragraphs introduced evidence refused on discovery and relied on inadmissible hearsay.

The court struck two paragraphs: one that improperly adopted another witness's affidavit and one containing inadmissible hearsay.

The court dismissed the remainder of the motion, finding the moving party was not prejudiced by the discovery refusal and that the other hearsay statements fell under the admissions exception.

The third party in an equipment rental dispute brought three preliminary motions before trial: to permanently stay the third party claim due to late disclosure of an alleged Mary Carter agreement, to permit calling an expert witness, and to permit cross-examination of the plaintiff's witness despite not defending the main action.

The court dismissed the motion for a stay, finding the agreed statement of facts was disclosed in a timely manner.

The court allowed the motions to call the expert witness and to cross-examine the plaintiff's witness, finding interference with the expert's retainer and relevance of the plaintiff's evidence to the third party's defence.

Constitutional appeal concerning whether a provincial liquor-control provision limiting possession of non-provincially sourced alcohol violated s. 121 of the Constitution Act, 1867.

The Court held that s. 121 bars laws that in essence and primary purpose restrict interprovincial trade like tariffs, but does not invalidate laws whose trade impacts are incidental to broader regulatory objectives.

It also held that lower courts cannot depart from binding precedent absent genuinely transformative legal developments or new social and legislative facts.

Applying that framework, the impugned provision's main purpose was provincial control of liquor distribution and use, not trade restriction.

The appeal was allowed and the provision was upheld.

The appellant employer appealed a trial judgment awarding the respondent employee $500,000 in damages for non-delivery of shares pursuant to an employment contract.

The appellant argued there was no evidence of the shares' liquidity to support the valuation.

The Court of Appeal dismissed the appeal, noting the liquidity issue was raised for the first time on appeal and the appellant had called no evidence at trial.

The court upheld the trial judge's reliance on the respondent's testimony regarding the company's value and the adverse inference drawn against the appellant for failing to call its president to testify.

Following a successful summary judgment motion by the defendant dismissing claims against it, the court determined the appropriate costs awards relating to both the summary judgment motion and an earlier procedural motion for directions under rule 34.14 of the Rules of Civil Procedure.

The court held that the plaintiffs were successful on the earlier procedural motion and awarded them partial indemnity costs of $10,000.

However, the defendant was entirely successful on the summary judgment motion and was entitled to partial indemnity costs.

After considering proportionality, reasonableness, and the complexity of the litigation, the court reduced the defendant’s claimed fees and fixed total costs for the summary judgment motion at $129,153.32.

After setting off the $10,000 owed to the plaintiffs for the procedural motion, the court ordered two plaintiffs to pay the defendant $119,153.32 in costs.

The plaintiffs sued the defendant art gallery for damages to a plaster sculpture allegedly attributed to Auguste Rodin, which was loaned to the gallery for a failed 'art flip' tax scheme.

The defendant brought a motion for summary judgment to dismiss the action as statute-barred and for judgment on its counterclaim for unpaid storage fees.

The court found that the plaintiffs' agents knew of the damage more than two years before the action was commenced, and this knowledge was imputed to the plaintiffs.

The court granted summary judgment, dismissing the plaintiffs' action as statute-barred and awarding the defendant $8,522.55 on its counterclaim for storage costs.