Ashlee L. Barber

The defendant insurer brought a motion under s. 128 of the Insurance Act to compel the plaintiff insureds to participate in the statutory appraisal process following a fire loss.

The plaintiffs opposed the motion, arguing the matter should proceed to summary judgment due to a fundamental disagreement over the valuation date and allegations of bad faith.

The court dismissed the motion, finding that the appraisal process is limited to valuation and cannot resolve broader legal disputes such as policy interpretation regarding the correct valuation date.

The plaintiffs were ordered to submit a sworn proof of loss.

The appellant appealed a scheduling order made by the Superior Court of Justice.

The Court of Appeal quashed the appeal, holding that a scheduling order is an interlocutory order because it does not determine the merits of the dispute.

Therefore, the appeal should have been brought to the Divisional Court, and the Court of Appeal lacked jurisdiction.

No costs were awarded.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal.

As the responding party filed no submissions regarding costs, the court made no order as to costs.

The plaintiff landlord sued its insurer for breach of contract and bad faith after the insurer refused to pay for storm damage repairs and asbestos remediation unless the plaintiff evicted all tenants from the building.

The plaintiff incurred significant costs attempting to evict the tenants through the Landlord and Tenant Board before eventually selling the building 'as is'.

The insurer brought a motion for summary judgment to dismiss the action.

The court dismissed the motion, finding genuine issues for trial regarding whether the insurer breached its duty of good faith by insisting on a vacant building and whether the policy's exclusion clauses applied to the eviction costs.

The applicants sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that precluded them from suing the respondent for personal injuries sustained by the applicant at her workplace.

The Tribunal found that both the applicant's employer and the respondent were Schedule 1 employers under the Workplace Safety and Insurance Act, 1997, and that the applicant was injured in the course of her employment while returning from a smoke break.

The Divisional Court dismissed the application, finding the Tribunal's decision was reasonable, well-reasoned, and consistent with the evidence, the law, and Board policies.

The moving party sought leave to appeal an earlier endorsement of Justice Nadeau.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the total amount of $5,000.

The appellant insurer appealed a summary judgment that found an "under construction" exclusion clause in a homeowner's policy did not apply to water damage.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that whether a property is "under construction" is a question of fact and that the renovations in this case were not sufficient to trigger the exclusion.

The court declined to provide a general definition for "under construction" emphasizing that exclusion clauses are construed narrowly and the insurer bears the burden of proof.

The moving party, AXA Insurance Canada, brought a motion for leave to appeal the order of Roger J. dated January 20, 2020.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding parties.

Following a costs endorsement, the plaintiffs requested a reconsideration, arguing the court omitted to deal with elements of their discovery requests.

The court declined to reconsider, noting that the costs of the plaintiffs' motions for further discovery were already assessed and regrouped under the production issues in the earlier decision.

The court issued a costs endorsement for multiple motions heard on January 9, 2020, in an insurance dispute.

The plaintiffs were awarded partial indemnity costs against AXA and McLeod for successful production motions, and against AXA for a successful motion regarding the "building under construction" exclusion.

The defendants Irvin Hoffman and Cohen & Lord Insurance Brokers Limited also received partial indemnity costs from AXA for their successful motion on the "building under construction" exclusion.

The plaintiffs were awarded substantial indemnity costs against McLeod and the brokers for their unsuccessful summary judgment motions, as the moving defendants acted unreasonably by failing to adduce sufficient evidence on discoverability.

The court fixed specific amounts for each cost award.

The plaintiffs' property suffered two water damage incidents, leading to claims against their insurer (AXA/Intact), an independent adjuster (McLeod), and insurance brokers (Hoffman and Cohen & Lord).

The court addressed multiple motions: the defendants' summary judgment motions regarding limitation periods and an "under construction" exclusion, and the plaintiffs' motion for better discovery and an informed representative.

The court dismissed the defendants' limitation period arguments (without prejudice to trial), found the "under construction" exclusion inapplicable, and granted the plaintiffs' discovery requests, ordering the defendants to provide better affidavits of documents and an informed representative, and for McLeod to be examined for discovery.

The plaintiffs were beneficial owners of a property held in trust by the defendant Bertrand, who was the registered owner.

Bertrand sold the property to 670 without the plaintiffs' consent and signed a false affidavit to clear executions against his name.

The trial judge found the transfer was a 'fraudulent instrument' under the Land Titles Act, declared it void, and ordered rectification of the register.

On appeal, the Divisional Court held that the trial judge erred in law.

Bertrand was not a 'fictitious person' and did not forge the transfer, as he was the true registered owner with legal authority to convey the property.

Furthermore, 670 was a bona fide purchaser for value without notice, protected by s. 62(2) of the Act, which states that describing an owner as a trustee does not constitute notice of a trust.

The appeals by 670 and the Director of Titles were allowed, confirming 670's ownership, while Bertrand's appeal against the findings of fact was dismissed.

The matter was remitted to the trial court to assess damages against Bertrand.

The court issued supplementary reasons and a costs decision following a summary judgment motion.

The plaintiff argued that the defendant Crime Stoppers could not rely on s. 3(3) of the Libel and Slander Act because it was not pleaded and that s. 3(7) applied due to a refusal to broadcast a statement.

The court clarified that Crime Stoppers was permitted to amend its defence to rely on s. 3(3) and that s. 3(7) did not apply as there was no refusal to publish a retraction, given the publication was removed and the plaintiff's counsel indicated satisfaction.

Regarding costs, the parties agreed to no order as to costs between the plaintiff and the Ottawa Police Services Board, and costs of the motion between the plaintiff and Crime Stoppers were made payable in the cause, to be fixed by the trial judge.

The plaintiff sued Ottawa Capital Area Crime Stoppers and the Ottawa Police Services Board for defamation and negligence after police posted her image on the Crime Stoppers website, identifying her as a "suspect" who "stole a purse." The defendants moved for summary judgment to dismiss the claims.

The court granted Crime Stoppers' motion to dismiss the defamation claim, finding it had a complete statutory defence under s. 3(3) of the Libel and Slander Act.

However, the police defendants' motion for summary judgment on the defamation claim was dismissed, as genuine issues for trial remained regarding available defences.

Both defendants' motions to dismiss the negligence claims were also dismissed, as the existence of a duty of care could not be determined on affidavit evidence.

The appellant appealed a summary judgment dismissing his action for unpaid bonus installments under the respondents' Variable Incentive Plan (VIP).

The appellant resigned before the pay-out dates for the final installment of his 2009 bonus and two installments of his 2010 bonus, totaling $114,916.79.

The VIP contained an "active employment" requirement stipulating that employees must be actively employed on the payment date to receive installments.

The appellant contended that sections 11(5) and 13(1) of the Employment Standards Act, 2000 required the respondents to pay the future installments upon his resignation.

The Court of Appeal upheld the motion judge's decision, finding that the active employment requirement did not contravene the ESA because the future installments did not constitute wages to which the employee was entitled at the time of resignation.

The plaintiff brought a motion for summary judgment seeking unpaid bonus payments after resigning from his employment.

The defendants argued that the plaintiff forfeited his entitlement to the bonus because the incentive plan required active employment at the time of payout.

The court found that the plan documents and employment letter clearly set out the active employment requirement, that the plaintiff had notice of it, and that the requirement did not contravene the Employment Standards Act, 2000.

The plaintiff's motion was dismissed, and summary judgment was granted in favour of the defendants.

The moving parties sought an extension of time to appeal an order dismissing their motion for a declaration that a civil judgment for assault survives the responding party's bankruptcy.

The motion judge had relied on a lower court decision that was subsequently reversed by the Court of Appeal after the appeal period expired.

Applying the test for extending time, the court found that despite an unsatisfactory explanation for part of the delay, the strong merits of the proposed appeal and the interests of justice warranted granting the extension.

The motion was allowed, with costs awarded to the responding party for the indulgence.

The insured brought a motion for partial summary judgment seeking a declaration that her action for statutory accident benefits was not statute-barred under s. 281.1 of the Insurance Act.

The insurer had terminated income replacement benefits following insurer examinations but failed to comply with mandatory procedural requirements under ss. 37 and 42 of the Statutory Accident Benefits Schedule, including failing to request a new disability certificate and failing to provide examination reports to the health practitioner who completed the disability certificate.

The court held these provisions were mandatory and that the insurer’s non-compliance meant the termination of benefits was not properly effected.

Because a proper refusal had not been given, the limitation period under s. 281.1(1) of the Insurance Act had not been triggered.

The court granted partial summary judgment declaring the action was commenced within the limitation period.

The plaintiff pedestrian sought leave to amend a statement of claim arising from a motor vehicle accident to add the defendant driver’s insurer as a defendant and to seek declaratory relief regarding insurance coverage.

The insurer denied coverage and argued that under s. 258(1) of the Insurance Act a plaintiff cannot sue an insurer until judgment is obtained against the insured.

The court held that while the statute prevents a direct claim for payment before judgment, it does not preclude a claim for declaratory relief regarding coverage between interested parties.

Given the broad jurisdiction to grant declarations and the goals of efficient and proportionate litigation, the proposed amendments were legally tenable and would allow earlier resolution of the coverage dispute.

Leave to amend was therefore granted with the exception of a paragraph seeking a declaration that the insurer was obligated to pay any judgment.

Following the dismissal of a motion seeking to add two former solicitors as defendants in a professional negligence action, the non-party solicitors sought costs.

The court confirmed that the solicitors had successfully resisted the motion and were entitled to costs on a partial indemnity basis.

In assessing costs under Rule 57, the court considered the importance of the issues, the significant damages claimed, extensive cross‑examinations, documentary record, and preparation required due to late abandonment of certain claims.

A moderate downward adjustment was applied to the hours claimed.

The court fixed reasonable costs payable by the plaintiffs to each solicitor.