Branko Josip Kurpis

The appellant, Ms. Wong, appealed a lower court's finding of civil fraud against her, which arose from her misrepresentation to Aviva Insurance Company of Canada regarding who was driving during a motor vehicle accident.

The original application sought a declaration that Aviva owed her a defence, which was denied due to policy breach and civil fraud.

The Court of Appeal dismissed the appeal, affirming that Aviva had suffered a real, albeit unquantified, loss due to Ms. Wong's actions, specifically in terms of its ability to defend the main action, thereby satisfying the loss element of civil fraud.

The applicant, Victoria Wong, sought a declaration that Aviva Insurance Company of Canada owed her a defence and indemnity under an insurance policy following a motor vehicle accident.

Aviva denied coverage, alleging breach of contract and civil fraud, stemming from Wong's misrepresentation that her mother, Chang Tieu, was driving the vehicle, and their subsequent collusion, including Tieu's false testimony under oath during discovery, assisted by Wong.

Wong also sought relief from forfeiture.

Aviva brought a cross-application to be added as a Statutory Third Party.

The court found that Wong breached her insurance contract and committed civil fraud, and that her conduct barred her from relief from forfeiture.

Consequently, Wong's application was dismissed, and Aviva's cross-application to be added as a Statutory Third Party was granted.

The Court of Appeal heard two appeals: a dependant support appeal and a costs appeal.

The dependant support appeal concerned whether the deceased had a "settled intention" to treat a non-biological child as his own for the purpose of dependant support under the Succession Law Reform Act.

The application judge dismissed the dependant support claim, partly due to the mother's failure to disclose the child's true parentage.

The costs appeal challenged a substantial indemnity costs award against the mother and grandmother, which the application judge based on a finding of a "false narrative." The Court of Appeal dismissed the dependant support appeal, upholding the application judge's finding that the deceased's knowledge of parentage was a relevant factor in determining "settled intention" given the short relationship.

However, the Court allowed the costs appeal, finding no basis for the "false narrative" conclusion or egregious conduct, and substituted the costs award with partial indemnity costs.

The applicant, Liping Liu, brought a motion seeking to amend her Notice of Application to substitute the Estate of Alphons Guigues as applicant (with her as Estate Trustee), to add the deceased's siblings and niece as respondents, and to strike or set a new timetable for the respondent's counter-application.

The background involved a dispute over the deceased's handwritten will, which left a condominium to the Coptic Church, and Ms. Liu's standing to contest it, as well as her potential dependency claim.

The court applied Rules 1.04 and 26.01 of the Rules of Civil Procedure, emphasizing the principles of just, expeditious, and proportionate determination.

The court found no prejudice to the respondent in allowing the amendments, noting that the deceased's siblings and niece had an interest and should be made parties.

The court also found that Ms. Liu had a statutory right under section 29 of the Estates Act to apply as Executor and Trustee of the Estate without a will for the portion of the estate not dealing with the condominium.

The motion to amend was allowed, new parties were ordered to be served, and a timetable was set for compliance with a previous order.

The plaintiff sought repayment of approximately $300,000 in alleged loans from the defendant.

The defendant moved for summary judgment, arguing the claim was statute-barred by the Limitations Act, 2002, and alternatively sought leave to amend his statement of defence to withdraw certain admissions.

The court found that significant factual disputes, including the nature of communications between the parties (complicated by the plaintiff's deafness and English comprehension), created a genuine issue requiring a trial regarding when the claim was discovered and if a clear and unequivocal demand for repayment was made.

Consequently, the motion for summary judgment was dismissed.

The motion for leave to amend the statement of defence was granted, as no non-compensable prejudice would result.

The moving party brought a motion for leave to appeal an order dated March 14, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,000 to the responding party.

The defendants, The Corporation of the City of Cambridge and The Cambridge & District Humane Society, successfully had the action dismissed against them and sought costs.

The court awarded partial indemnity costs of $25,000 against the plaintiff Inderpal Dhillon, rejecting the defendants' claim for substantial indemnity costs post-offer to settle due to insufficient compromise in their offer.

The court declined to award costs against the Family Law Act claimants (Sarita, Jasmeen, Anisha, Binita, and Krishma Dhillon) given their early abandonment of claims and lack of involvement.

The plaintiff Inderpal Dhillon's impecuniosity was considered but did not eliminate liability for costs.

The defendant, Metrolinx, brought a motion to remove the plaintiffs' counsel of record, arguing that counsel was a material witness to the negotiations underlying the plaintiffs' claims for negligent misrepresentation and breach of contract.

The court applied the Essa factors and found that the defendant failed to establish that counsel would likely be called as a witness or that his evidence was necessary.

The court also held that the defendant was not entitled to disclosure of solicitor-client privileged communications.

The motion was dismissed.

The Estate of John Hemlow sought a declaration that Co-operators General Insurance Company had a duty to defend an action against the Estate arising from a workplace accident involving an ammonia leak.

Co-operators denied coverage based on a "Total Pollution Exclusion" clause in Hemlow's Commercial General Liability (CGL) policy.

The application judge found a duty to defend, concluding the exclusion was ambiguous and applied only to environmental pollution.

On appeal, the Court of Appeal for Ontario upheld the duty to defend, finding that the claim against the Estate was for negligence and breach of contract, which falls within the CGL policy's coverage, and the pollution exclusion did not apply as the claim was not for environmental pollution or government-mandated cleanup costs.

The plaintiffs sued the City of Cambridge and its Animal Services for negligence following a dog bite incident, alleging failure to properly enforce the animal control by-law regarding prior incidents involving the same owners or premises.

The municipal defendants moved for summary judgment.

The court granted the motion, finding that the animal control officer's exercise of discretion during prior investigations did not fall below the standard of care.

Furthermore, the court held that the plaintiffs could not establish that the alleged negligence caused the injuries, as it was speculative whether further investigation would have prevented the attack.

The moving party brought a motion for leave to appeal the order of Justice Edwards dated June 21, 2021.

The Divisional Court dismissed the motion and ordered costs in the amount of $5,000 to be paid to the responding parties within thirty days, to be divided among them as they deem reasonable.

The applicants were successful on a motion regarding the procedure for DNA testing to determine if the respondent's child was the biological child of the deceased.

The applicants sought costs of $17,485.82 on a partial and substantial indemnity basis.

The court found the applicants were the successful parties and their offer to settle was reasonable, but concluded the costs claimed were excessive given the narrow issue and the modest amount in dispute ($62,841.54).

The court fixed the applicants' costs at $7,213 inclusive of HST and disbursements.

The defendants Gloria Scherer and First Canada ULC brought a motion for summary judgment to dismiss the claim against them, which was opposed by The Regional Municipality of Niagara.

The motion arose from a motor vehicle accident where a vehicle carrying the plaintiff slid into the path of a school bus driven by Scherer and owned by First Canada ULC.

The court found no genuine issue requiring a trial regarding the bus driver's negligence or causation, ruling that the expert report relied upon by the responding party was inadmissible and, even if admissible, did not establish causation.

The court granted partial summary judgment, dismissing the claim against Scherer and First Canada ULC, finding it to be a discrete issue that could be bifurcated and resolved cost-effectively without delaying the main action or risking inconsistent findings.

The appellants appealed an order striking out their statement of defence and counterclaim after they repeatedly failed to comply with a settlement agreement and a subsequent court order enforcing it.

The Divisional Court dismissed the appeal, finding that the motions judge made no error in principle and properly exercised his discretion under Rule 60.12.

The court held that the process established by the motions judge to determine the remaining damages for breach of settlement within the existing action was fair, efficient, and proportionate.

Following an unsuccessful defence motion for summary judgment on a discoverability issue in a motor vehicle accident action, the court addressed the appropriate quantum of costs payable to the plaintiff.

The plaintiff sought over $50,000 in partial indemnity costs.

The court found the requested fees excessive, noting duplication of work among multiple counsel and disproportionate time claimed by senior counsel who did not draft the materials.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized fairness, reasonableness, and the expectations of the parties.

Costs were reduced and fixed at a lump sum of $29,000 inclusive of fees, disbursements, and HST.

The applicants sought removal of the estate trustee under ss. 5 and 37 of the Trustee Act and the appointment of a replacement trustee.

The court reviewed the governing principle that removal of a trustee depends primarily on the welfare of the beneficiaries and whether the continuation of the trustee would impair proper administration of the trust.

Evidence showed escalating hostility between the estate trustee and beneficiaries, questionable handling of estate assets, and conduct demonstrating disregard for the beneficiaries’ interests.

The court concluded that the level of animosity and breakdown in trust would prevent proper administration of the estate and ongoing trust obligations.

The estate trustee was removed and an independent lawyer was appointed as replacement trustee.

The defendant insurer brought a motion for summary judgment in an action seeking accident benefits and alleging bad faith in the handling of the claim.

The court found the action was commenced outside the two-year limitation period under s. 281.1 of the Insurance Act, which began running from the insurer’s clear refusal of benefits.

The plaintiff had also failed to submit a disability certificate certifying the statutory criterion required for non-earner benefits.

The court further held the allegations of bad faith were unsupported by evidence and subject to the same limitation period.

Summary judgment was granted dismissing the action.

Following a summary judgment motion, the parties were unable to agree on costs.

The defendants had sought dismissal of extensive extra‑contractual claims including allegations of bad faith, negligent claims handling, and mental distress damages totaling several million dollars, which the plaintiff abandoned on the eve of the motion.

Although the plaintiff successfully resisted dismissal of her contractual claim for non‑earner benefits, the court found the defendants were substantially successful because the principal damages claims were withdrawn or dismissed.

Applying the principles under s. 131(1) of the Courts of Justice Act and Rule 57.01, the court determined that costs should generally follow the event but must remain fair and reasonable in the circumstances.

The court fixed partial indemnity costs payable to the defendants in a reduced amount to reflect the plaintiff’s limited success on the motion.

The plaintiff brought an action against her insurer claiming entitlement to a non-earner benefit following a motor vehicle accident.

The defendant insurer moved for summary judgment to dismiss the action, arguing there was no genuine issue requiring a trial.

The court applied the principles from Hryniak v. Mauldin and Heath v. Economical Mutual Insurance Co., concluding that the evidence provided on the motion was insufficient to make the necessary qualitative findings of fact regarding the plaintiff's post-accident impairments.

The motion for summary judgment was dismissed, as a trial was required to achieve a fair and just adjudication.