Brian C. Elkin

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 parties sought an interlocutory injunction to prevent the responding parties from opening a competing Caribbean fusion restaurant in close proximity to their existing restaurant.

The responding party, a former director of the moving party's corporation, had signed a unanimous shareholder agreement containing a non-competition clause.

The court applied the RJR-MacDonald test and found a serious issue to be tried regarding the enforceability of the non-competition clause and breach of fiduciary duty.

The court concluded that opening a competing business nearby would cause irreparable harm not compensable in damages, and the balance of convenience favoured granting the injunction.

The defendants, engineering consultants, brought a motion for summary judgment to dismiss a crossclaim by the co-defendant developer.

The crossclaim was a subrogated claim advanced by the developer's insurer.

The moving parties argued they were additional insureds under the developer's wrap-up liability policy and thus protected by a waiver of subrogation clause.

The developer argued the waiver should not apply because the moving parties' professional services were excluded from coverage under the policy.

The court held that the moving parties were additional insureds and the clear language of the policy's waiver of subrogation clause applied, regardless of the professional services exclusion.

The motion for summary judgment was granted and the crossclaim was dismissed.

The parties appeared to settle the terms of an order following earlier motions regarding an insurance coverage dispute for water damage.

The court agreed with the defendant brokers to add wording dismissing the action against them concerning an inapplicable 'under construction' exclusion.

The court also stayed the disclosure of certain documents pending the insurer's motion for leave to appeal.

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.

This endorsement addresses the costs of a prior motion where the defendant SCM Insurance Services Inc. successfully obtained an order prohibiting the plaintiff, Joanne Burwash, from using documents subject to the deemed undertaking rule.

SCM sought partial indemnity costs.

The plaintiff argued for costs to be in the cause or for a reduction based on proportionality and the potential future admissibility of the documents.

The court rejected the plaintiff's arguments, finding that the deemed undertaking ruling was a final determination on the use of the documents.

The court awarded SCM its full requested partial indemnity costs of $52,573, payable within 30 days.

The defendant Lumipro Inc. sought leave to appeal an order from Justice Robert J. Smith.

The original order dismissed Lumipro's summary judgment motion and granted the plaintiff's motion to substitute Maxrelco (Immeubles) Inc. as the plaintiff, correcting a misnomer despite the ostensible expiry of the limitation period.

The court denied leave to appeal, finding no conflicting jurisprudence and no good reason to doubt the correctness of the motion judge's decision.

The court affirmed that the decision aligned with established Court of Appeal precedent on the expansive interpretation of "misnomer," which allows for the substitution of a correct corporate plaintiff when there is no prejudice and the defendant was aware of the intended claimant.

The plaintiffs (taxicab drivers and their union) sought an interlocutory injunction against Uber drivers to enforce a City by-law, which was denied.

This endorsement addresses the costs of that unsuccessful injunction motion.

The court awarded partial indemnity costs of $60,000 plus HST and disbursements to the successful Uber drivers, payable forthwith, considering the complexity and importance of the matter, the intense work required to respond to an injunction, and the applicants' sophistication.

Maxrelco Inc. sought substantial indemnity costs for successfully opposing a summary judgment motion brought by Lumipro Inc. and for its own cross-motion to amend the plaintiff's name to correct a misnomer.

Lumipro Inc. argued the costs claimed were excessive, that its summary judgment motion was reasonably brought, and that no costs should be awarded for the misnomer amendment.

The court, applying Rule 57 of the Rules of Civil Procedure, found that substantial indemnity was not warranted because the summary judgment motion raised an arguable issue and the need for the misnomer amendment was due to the plaintiff's initial error.

The court fixed costs on a partial indemnity basis for the summary judgment motion, ordering Lumipro Inc. to pay Maxrelco Inc. $12,000 plus HST and disbursements.

The defendant Lumipro Inc. sought summary judgment to dismiss the action, arguing the plaintiff Maxrelco Inc. lacked standing as it was a shareholder, not the property owner, and that Lumipro was only hired for repairs, not maintenance.

Maxrelco Inc. brought a cross-motion to amend its Statement of Claim to correct a misnomer, changing the plaintiff to Maxrelco (Immeubles) Inc., the actual property owner.

The court granted Maxrelco's cross-motion, finding it was a misnomer and caused no prejudice to the defendant.

Consequently, the court dismissed Lumipro's summary judgment motion, determining there was a genuine issue requiring a trial regarding the cause of the fire and Lumipro's alleged negligence in sign repair and maintenance.

Licensed taxicab drivers and their union brought a motion for an interlocutory injunction to restrain Uber drivers from operating in Ottawa, alleging breaches of the City's taxi by-law and various economic torts.

The court found that while one taxicab driver had standing as a ratepayer and there was a serious issue to be tried, the plaintiffs failed to establish irreparable harm, as their alleged economic losses could be quantified in monetary terms.

Furthermore, the balance of convenience did not favour an injunction, given the plaintiffs' delay, their private financial interest, and the City's pending policy review of ridesharing services.

The motion for an injunction was dismissed.

In a certified class proceeding concerning allegedly unsafe solarium models, the plaintiff brought a motion to settle the certification order and notice to class members, obtain security for publication costs, and address unpaid cost awards.

The defendant cross-moved to amend the class definition, remove the representative plaintiff, decertify the action, and require fuller disclosure of counsel’s fee arrangement.

The court held that the class definition previously approved by the Divisional Court remained appropriate and rejected the defendant’s attempt to narrow it to current users of the solariums.

The representative plaintiff remained a valid class member despite no longer residing in the home where the solarium had been installed.

The court dismissed the defendant’s motions, ordered the defendant to pay $7,000 into counsel’s trust account for notice publication costs, and approved the certification order and class notice with a minor amendment concerning disclosure of the retainer agreement.

Following the dismissal of a motion for leave to appeal in a class proceeding, the court addressed the issue of costs.

The successful party sought full indemnity costs including significant hours for factum preparation, while the opposing party provided its own cost outline for comparison.

The court applied the usual rule that costs follow the event and assessed costs on a partial indemnity basis at 55% of a reasonable full indemnity bill.

Considering the excessive but understandable factum preparation, the court fixed costs payable by the defendant to the plaintiff at $7,000.

In a certified class proceeding, the defendant sought leave to appeal an interlocutory decision that ordered notice to class members through newspaper publication and added a common issue concerning whether an appropriate remedy existed if liability were established.

The court applied Rule 62.02(4) of the Rules of Civil Procedure governing leave to appeal interlocutory orders.

It held that no conflicting authority existed and there was no reason to doubt the correctness of the motion judge’s decision regarding publication of notice.

The court further held that the motion judge acted within his discretion in permitting consideration of an expert report appended to an affidavit and in adding a common issue relating to potential remedies.

As neither branch of the test for leave to appeal was satisfied, leave to appeal was refused.

The representative plaintiff in a class proceeding sought costs following a motion to add additional common issues and to determine the method of giving notice to potential class members.

The plaintiff requested costs on a complete indemnity basis, alleging delay and obfuscation by the defendant regarding the number of class members.

The court found that success on the motion was divided but that the plaintiff was substantially successful, particularly on the primary issue relating to the appropriate remedy and the method of providing notice to class members.

Although the defendant’s conduct contributed to the need for newspaper publication notice, the court held it was not sufficiently blameworthy to justify substantial or complete indemnity costs.

Costs were awarded to the plaintiff on a partial indemnity basis.