Avi Sharabi

The plaintiffs sought court approval of a $650,000 settlement in a class action arising from an apartment building fire that displaced hundreds of residents.

The fire was allegedly caused by a space heater, which the plaintiffs claimed was necessary due to the defendants' failure to provide adequate heating.

The court approved the settlement as fair, reasonable, and in the best interests of the class, noting the litigation risks and the meaningful compensation it provides to vulnerable class members.

The court also approved class counsel's 25% contingency fee and disbursements totaling $189,432.72.

The plaintiffs in a certified class action arising from a fatal high-rise fire sought court approval for the form and method of dissemination of the proposed Notice of Settlement under section 29 of the Class Proceedings Act, 1992.

The court found the proposed notices provided adequate information to class members regarding the terms of the proposed settlement, the procedure for voicing objections, and the timeline.

The court approved the form of notice and the proposed dissemination methods, including email, media distribution, toll-free telephone service, and website posting.

Three consolidated applications concerning the duty of various insurers to defend Ontario in connection with a bridge collapse in Elgin County in 2018.

Ontario sought orders requiring Aviva Insurance Company of Canada and Royal & Sun Alliance Insurance Company of Canada to defend two related lawsuits and to share defence costs equally.

The insurers argued they had no duty to defend or, alternatively, that defence costs should be allocated on a "time on risk" basis.

The court found that Aviva and RSA owed a duty to defend based on the allegations of property damage to anchor rods occurring during their respective policy periods, despite the loss of use occurring after the policies expired.

The court rejected the "all sums" approach and adopted a "time on risk" allocation, requiring Aviva to pay 5.5% and RSA to pay 11.1% of defence costs.

The secondary applications by Aviva and RSA against AIG and St. Paul were dismissed as moot.

The decision concerns the certification and approval of a partial settlement in a class action regarding business interruption insurance for dentists, specifically Aviva’s “Triple Guard” policies marketed by CDSPI.

The court certified the class action for settlement purposes as against CDSPI and approved the settlement, finding that all statutory criteria were met and that the settlement was fair and reasonable.

The court also dismissed Aviva’s motion for a stay, holding that disclosure of the settlement was timely and that Aviva’s rights were not prejudiced by the settlement or its timing.

The applicant, Charles Thomas McNair, sought a declaration that his homeowner’s insurance policy with Aviva Insurance Company of Canada covered a claim arising from a fatal collision involving his Sea-Doo watercraft.

The court considered whether the policy’s 30-day grace period for newly acquired watercraft extended coverage to the Sea-Doo, which was powered by a jet-pump propulsion system.

The court found the policy ambiguous and, applying principles of insurance contract interpretation, held that the grace period did provide coverage.

The court also determined that the incident occurred within the 30-day grace period, as acquisition was defined by possession and control, not merely payment.

The court ordered Aviva to indemnify McNair for costs and disbursements incurred in defending the underlying action and awarded full indemnity costs.

This appeal addresses an insurer's duty to defend and fund defence costs for mixed claims (covered and uncovered).

The Court of Appeal clarified the application of the pleadings rule to determine coverage and whether an insurer can seek equitable contribution from an insured.

The application judge erred in characterizing all claims as covered and in finding equitable contribution inapplicable between insurer and insured.

The Court found that statutory negligence claims were not covered by the Aviva policy, but upheld the initial 100% funding by Aviva, subject to reallocation after trial or settlement, as equitable contribution is only available between concurrent insurers, not from an insured.

The appellant, a condominium unit holder, appealed the dismissal of his application against the condominium corporation regarding noise complaints from an adjacent unit.

The original application sought relief under the Condominium Act, primarily an oppression remedy (s. 135), and damages.

The application judge found the corporation's response to the complaints reasonable and dismissed the application, noting that the unit owner causing the noise was not a party, precluding certain remedies.

On appeal, the appellant's new counsel attempted to re-frame the argument to focus on a compliance order under s. 134 (nuisance).

The Court of Appeal refused to entertain this new argument, emphasizing that it was not properly raised below and would require fact-finding.

The Court affirmed the application judge's finding that the corporation's conduct was not oppressive, as it had taken reasonable steps to address the complaints, and that the requested remedy of unit renovation could not be ordered without the affected unit owner being a party.

The appeal was dismissed.

This application concerned an oppression remedy claim brought by Rene Ziegelmaier against his former business partner, Casey Fisher, and several corporations involved in a microbrewery venture, as well as Frontenac Community Futures Development Corporation.

The applicant alleged oppressive conduct by Fisher, including being locked out of the business premises and bank accounts.

The court found numerous material factual disputes and credibility issues that could not be resolved on the application record.

Consequently, the court dismissed the application against Frontenac Community Futures Development Corporation and converted the remainder of the application into an action, directing the parties to exchange pleadings and proceed with discoveries.

This application concerned a dispute between Live Nation and Aviva regarding which of two insurance policies (Aviva's or Live Nation's Starr policy) should primarily cover Live Nation's defence costs in a related claim.

Live Nation, as an additional insured under Aviva's policy (issued to its security contractor NWP), argued Aviva's policy was primary.

Aviva contended its policy was excess and sought equitable contribution from Live Nation's policy.

The court found Aviva's policy to be primary, rejecting the equitable contribution argument based on policy language and commercial intent, and ordered Aviva to pay 100% of defence costs, subject to a future re-apportionment application.

The plaintiffs brought a motion to certify a class action arising from a fire at an apartment building in Toronto, which allegedly caused significant property damage and personal injuries.

The fire was alleged to have resulted from a faulty electrical system or a malfunctioning space heater.

The defendants consented to certification, conceding that the statutory criteria under section 5(1) of the Class Proceedings Act were met.

The court certified the action, defined the class and sub-classes, and approved the agreed-upon common issues.

The applicant condominium owner sought an oppression remedy against the condominium corporation regarding nighttime noise from the unit above, which was generated by medical equipment and nursing care for a disabled child.

The court found that the corporation had investigated the complaints, obtained expert reports, and acted reasonably.

The application was dismissed as the corporation had no authority to compel the neighbouring owner to renovate their unit, and the corporation's conduct was not oppressive.

The self-represented plaintiff brought a motion to compel the three defendants to deliver further and better affidavits of documents and to provide access to their computer hard drives to search for relevant documents.

The underlying action involves allegations of fraudulent misrepresentation regarding structural damage to the plaintiff's vehicle following a collision.

The court dismissed the motion against two defendants, finding no evidence that documents were withheld or intentionally deleted.

The motion against the insurer was partially granted, requiring it to produce an event log and an itemized list of documents claimed as privileged, but the request to inspect its hard drive was denied.

The Defendants, having achieved partial summary judgment in a dispute over condominium unit boundaries and common elements, sought partial indemnity costs of over $100,000.

The Plaintiff, who also achieved partial success on summary judgment, argued for no costs or costs in the cause, asserting that joining all unit owners was necessary and that the adjudication provided clarity for all parties.

The court, acknowledging the divided success and the complex nature of the litigation, determined that an order of no costs was appropriate, finding that the necessity of joining all defendants and the shared benefit of clarifying the issues outweighed the Defendants' arguments for costs.

The plaintiff, owner of a rooftop condominium unit, sued the condominium corporation and other unit owners over the boundaries and exclusive use of common elements (Elevator Landing, Interior Hallway, Roof, South Stairwell) and for torts including trespass and nuisance.

The defendants brought a motion for partial summary judgment.

The court granted partial summary judgment, declaring the Elevator Landing part of the plaintiff's unit, but the Interior Hallway, Roof, and South Stairwell as common elements.

All tort claims against individual unit owners were dismissed.

The applicant insurer sought a declaration that three other insurers had a duty to defend a construction company in an action for damages resulting from an allegedly defective mechanical system.

One insurer, AIG, denied a duty to defend based on faulty workmanship and loss of use exclusions.

The court found that the allegations in the statement of claim regarding consequential damage and loss of use were sufficiently broad to raise the possibility of coverage, triggering AIG's duty to defend.

The court further held that the defence costs should be allocated among the insurers on a 'time on risk' basis, rather than equally, and that a self-insured retention clause did not alter one insurer's obligation to contribute to defence costs at this stage.

The applicant kickboxing gym sought a declaration that its insurer had a duty to defend and indemnify it in an underlying action.

The underlying action alleged that an employee of the gym sexually assaulted a plaintiff, and that the gym was liable for negligent supervision.

The insurer denied coverage based on an abuse exclusion clause.

The court found that while the abuse exclusion applied to negligence arising directly from the assault, the pleadings also alleged broader negligent supervision that could fall outside the exclusion.

Applying the principle that the mere possibility of coverage triggers the duty to defend, the court ordered the insurer to defend the gym, but held that the duty to indemnify was premature.

The appellants sought to add three health care providers as defendants to a medical malpractice action more than two years after the original injury.

The motion judge dismissed the motion on the basis that the limitation period had expired.

The Court of Appeal allowed the appeal, finding that the motion judge applied the wrong test under the Limitations Act, 2002.

The court held that the motion judge failed to make proper findings of fact regarding when the appellants knew or ought reasonably to have known of their claims against the proposed defendants.

The court also found that the motion judge erred in treating lack of due diligence as a standalone ground for finding claims statute-barred.

The key distinction was that the claims against the proposed defendants differed from the claim against the original defendant, as they involved allegations that the health care providers failed to take immediate action once cauda equina syndrome was suspected, information that was only revealed during examinations for discovery in 2015.

The plaintiff, a land developer, sought insurance coverage from the defendant insurer for five underlying actions alleging misrepresentation of lot sizes, leading to claims of reduced property size and loss of use.

The defendant moved for a declaration that the alleged smaller lot sizes did not constitute "property damage" under its Comprehensive General Liability policy, and thus it had no duty to defend.

The plaintiff cross-moved for an order that the defendant did have a duty to defend.

The court found that the underlying claims for "loss of use of tangible property that is not physically injured" could constitute "property damage" as defined in the policy, particularly given the purchasers' equitable interest in the land.

Consequently, the court dismissed the defendant's motion and granted the plaintiff's cross-motion, declaring that the defendant had a duty to defend.

The court also addressed the issue of counsel selection, stating that merely disputing the duty to defend or indemnify does not automatically create a conflict requiring the insurer to surrender control of counsel appointment.

The City of Markham applied for a declaration that Intact Insurance Company had a duty to defend the City in a main action arising from a slip and fall incident.

The City also sought an order allowing it to appoint its own counsel at Intact's expense due to a conflict of interest, and reimbursement for past legal expenses.

The court found that Intact had a duty to defend the City as an additional insured under VTA Construction Limited's policy, as the claims arose from VTA's operations.

A real conflict of interest was identified due to VTA's cross-claim attempting to shift liability to the City, thus entitling the City to independent counsel.

Intact was ordered to pay all defence costs, including past expenses, on a full indemnity basis, as it was impractical to apportion costs between covered and uncovered claims.