Brian C. Elkin

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.

The appellant appealed a decision finding that the respondent's submission to arbitration was not time-barred.

The Court of Appeal upheld the application judge's interpretation of the commercial agreement, agreeing that the parties were obliged to attempt to resolve the dispute over information delivery and costs before proceeding to arbitration.

The appeal was dismissed with costs.

The appellants appealed a jury verdict in a motor vehicle accident case, arguing the trial judge erred in instructing the jury on negligence, proximate cause, and the onus on a driver who was on the wrong side of the road.

The Court of Appeal dismissed the appeal, finding that the jury charge, read as a whole, properly instructed the jury that the onus was on the defendant to explain how the accident occurred without his negligence due to an emergency situation.

The jury's conclusion that the defendant acted as an ordinary, prudent person in an emergency was upheld.

The appellants appealed a trial judgment dismissing their action for damages arising from a severe neural tube defect allegedly caused by exposure to TCE.

The Court of Appeal upheld the trial judge's rejection of the appellants' expert theory of causation, finding no palpable and overriding error.

The court confirmed that the exceptional material contribution test for causation from Resurfice Corp. v. Hanke did not apply, as the evidence established no association between TCE and the defect.

The appeal was dismissed with costs.

The appellant appealed a trial judgment finding that she was involved in a minor accident and did not sustain a serious impairment of an important physical, mental, or psychological function pursuant to s. 267.1 of the Insurance Act.

The Court of Appeal found no error in the trial judge's conclusion, which was based on overwhelming evidence.

The appeal was dismissed with costs fixed at $10,000.

The appellant, Lafarge Canada Inc., sought a Bullock order regarding costs.

The Court of Appeal declined to make the order, noting that the appellant should have known the inclusion of the successful insurers as respondents on the appeal was unnecessary, as evidenced by the appellant abandoning the appeal against most of them at the end of oral argument.

The Court requested further submissions on whether the successful insurers should receive partial or substantial indemnity costs and whether costs should be fixed or assessed.

The plaintiffs, homeowners, sued Bertrand and Lafarge for damages resulting from defective concrete foundations caused by fly ash supplied by Lafarge.

The trial judge found Lafarge 80% liable and Bertrand 20% liable for approximately $20,000,000 in damages.

This appeal concerns the insurance coverage disputes between Bertrand, Lafarge, and their numerous primary and excess insurers.

The Court of Appeal upheld the trial judge's findings that the defective foundations constituted property damage under the CGL policies, that the continuous trigger theory applied to trigger all policies from 1986 to 1992, and that certain excess insurers had a duty to contribute to defence and third-party costs.

The appeal by Guardian Insurance was allowed regarding its duty to defend, but all other appeals and cross-appeals were dismissed.

Homeowners and the Ontario New Home Warranty Program brought actions against a concrete supplier (Bertrand) and a cement manufacturer (Lafarge) for defective concrete foundations caused by the introduction of fly ash.

The trial judge found Lafarge 80% liable and Bertrand 20% liable in negligence for failing to conduct adequate testing.

Lafarge appealed the liability findings and the costs award (which ordered Lafarge to pay 90% of costs due to its conduct at trial).

Bertrand cross-appealed seeking full indemnity.

The Court of Appeal dismissed the appeals and cross-appeals, upholding the trial judge's findings on liability, apportionment, and costs, while varying the judgment slightly to reflect settlements reached during the appeal regarding prejudgment interest and one homeowner's garage.