Brian G. Sunohara

The defendants, two insurance companies, brought a motion under Rule 6.01 to have two bad faith actions heard together or one immediately after the other without a jury.

The plaintiffs opposed the motion, citing significant delay and distinct legal issues.

The court dismissed the motion, finding that the defendants' delay in bringing the motion was unacceptable and prejudicial to the plaintiffs, particularly given that one action was already scheduled for trial.

The court also noted that the issues, while related, were sufficiently discrete to proceed separately, and a decision in the more advanced action might resolve or narrow the other.

This was a refusals motion brought by the plaintiff within a larger motion by the defendants to amend their statement of defence and potentially withdraw an admission in a bad faith action.

The plaintiff sought production of a letter from counsel relied upon by a witness for factual assertions in an affidavit, and an answer regarding communications with a companion bad faith action.

The court granted the refusals motion, ordering the production of the letter (with redactions for privileged portions, noting waiver of privilege for facts relied upon) and the answer to the question, finding them relevant to the main motion.

Following a successful 12-day jury trial where the plaintiffs were awarded $2,170,188 in damages (net $1,749,690.54), the court addressed the parties' dispute over costs.

The plaintiffs sought partial indemnity costs until their offer to settle and substantial indemnity thereafter, arguing they "beat" their offer.

The defendants sought reductions for costs related to statutory accident benefits (SABS) litigation, an interlocutory motion to add a party, and a Workplace Safety and Insurance Appeals Tribunal (WSIAT) hearing, as well as certain disbursements.

The court, applying Rule 57.01 factors, fixed the plaintiffs' costs at $478,750.00 (inclusive of HST and disbursements) and allowed the defendants a $5,000 deduction for the collateral benefits motion, resulting in a net award of $473,750.00 to the plaintiffs.

The decision disallowed costs for the WSIAT hearing, the interlocutory motion, and certain disbursements (meals, courier, copying, adverse costs insurance), while partially allowing SABS-related costs due to the benefit derived by the defendants.

This addendum clarifies and corrects the court's previous Reasons released on December 5, 2023, regarding the application of a statutory deductible to a Family Law Act award.

Following a jury trial, the court had initially misunderstood the parties' agreement, stating no deductible applied to Sandra McCurdy's $65,000 award.

This addendum rectifies that, confirming the award is subject to the statutory deductible of $22,183.63, resulting in a revised total net judgment for the plaintiffs.

The plaintiff brought a motion for the disclosure of documents over which the defendants asserted litigation privilege in an action alleging bad faith by the insurer.

The plaintiff argued that the defendants' conduct in the underlying tort action, including making joint settlement offers with the tortfeasor, constituted actionable misconduct that pierced the litigation privilege.

After reviewing the documents, the court found they were innocuous communications and did not evidence abuse of process or blameworthy conduct.

The motion for disclosure was dismissed.

The plaintiff brought a motion for a further and better affidavit of documents in an action alleging bad faith by her insurer, Pilot/Aviva.

The plaintiff sought production of communications between Aviva and counsel for the tortfeasors' insurer, Traders/Aviva.

The defendants claimed litigation and solicitor-client privilege over the contested documents.

The court ordered that the contested documents be delivered to Associate Justice Kaufman for judicial review to determine whether they are protected by privilege or ought to be produced.

The minor plaintiff was seriously injured after hanging onto the outside of a moving escalator handrail at the defendants' shopping mall and falling from a height.

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

The court granted the motion, finding that the defendants owed no duty of care to protect the plaintiff from such an obvious and self-evidently dangerous activity.

Furthermore, the court held that the plaintiff willingly assumed the risk under s. 4(1) of the Occupiers' Liability Act, and that the defendants' security measures were reasonable.

The appellant appealed a jury verdict awarding the respondent approximately $700,000 in damages for personal injuries arising from a motor vehicle accident.

The main issue at trial was whether the respondent's post-traumatic stress disorder was caused by the collision or by an earlier sexual assault.

The trial judge excluded surveillance video evidence and Facebook posts that the defence sought to introduce as substantive evidence of the respondent's functionality.

The Court of Appeal found that the trial judge erred in excluding the surveillance evidence by dealing with it as a whole rather than taking a discrete approach to each video excerpt, and by concluding that the evidence could only be admissible if it directly contradicted the respondent's testimony.

However, the Court found that even if the surveillance evidence were admissible, it was not so significant that it would have affected the jury's verdict on damages.

The appeal was dismissed.

The appellants purchased an HVAC system installed by the respondent in 2006.

The system malfunctioned almost immediately.

The respondent assured the appellants that problems were due to improper maintenance and sold them a maintenance contract.

After two years of unsuccessful maintenance, the appellants concluded the respondent had been lying.

By fall 2009, they consulted other HVAC providers.

In November 2010, the manufacturer informed them the system was improperly installed.

The appellants commenced an action in February 2012.

The respondent moved for summary judgment arguing the action was statute-barred under the two-year limitation period in the Limitations Act, 2002.

The motion judge granted the motion, finding the appellants discovered their claim well before February 2010.

The appellants appealed, arguing they did not discover their claim until November 2010 when they learned the reason for the system's failure.

The majority of the Court of Appeal dismissed the appeal, holding that the appellants did not need to know the precise cause of the malfunction to discover their claim—only that the system was not working and the respondent was responsible for its installation.

The dissent argued that knowledge of the improper installation was essential to discovering the claim and that the respondent's fraudulent concealment should have tolled the limitation period.

The defendants, CP REIT Ontario Properties Limited and Arcturus Realty Corporation, brought motions for summary judgment to dismiss the plaintiff's claim under the Occupiers' Liability Act.

The plaintiff was struck by a car in a shopping plaza managed by the defendants.

The court considered conflicting expert opinions regarding site safety and pedestrian "desire lines," and the impact of a jury notice on summary judgment motions.

The court found that a genuine issue for trial existed, as a reasonable jury, properly instructed, could find the defendants liable for breaching the Occupiers' Liability Act.

Consequently, the motions for summary judgment were dismissed.

The plaintiffs retained the defendant to install an HVAC system in their new home.

The system experienced significant problems immediately after installation in 2006.

Despite maintenance attempts, the problems persisted, and by late 2009, the plaintiffs were consulting other service providers who advised the system was improperly installed.

The plaintiffs commenced an action for damages in February 2012.

The defendant brought a motion for summary judgment to dismiss the action as statute-barred.

The court granted the motion, finding the plaintiffs discovered their claim well before February 2010, as they knew the system was defective and were no longer relying on the defendant's good faith efforts to remedy the issues.

The third parties brought a motion to dismiss the defendants' third party claim based on an indemnity contract, which was unsuccessful.

The defendants sought costs of $41,041.95, which included an $18,666.50 disbursement for an expert report.

The court found that the expert report played no role in the narrow motion argued and deferred its costs to the trial judge.

Applying the factors under Rule 57.01, the court fixed the defendants' costs for the motion at $15,000 inclusive of disbursements and HST, payable by the third parties.

Following a personal injury action arising from a fitness class accident, the defendants issued a third party claim against the program developer alleging negligent training of the instructor.

The third parties moved for summary judgment relying on a contractual indemnity clause requiring the fitness club to indemnify them for claims arising from activities at the facility.

The court held that indemnity for a party’s own negligence must be expressed in the clearest terms, and the clause relied upon did not meet that standard and was ambiguous.

The court also declined to consider an alternative argument limiting liability because it was not properly pleaded or supported by evidence in the motion record.

Following a successful motion involving a conflict of laws analysis concerning jurisdiction over an accident that occurred in New York State, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the complexity of the proceeding and the importance of the issues to the parties.

Although the successful moving party sought over $23,000 in partial indemnity costs, the court found the hours claimed excessive relative to the reasonable expectations of the losing parties.

The court therefore reduced the claim and awarded partial indemnity costs in a significantly lower amount.

Costs were ordered payable jointly by the plaintiff and an opposing defendant insurer.

The defendants, Aviva Canada Inc. and Pilot Insurance Company, brought summary judgment motions to dismiss two actions by the plaintiff arising from a motor vehicle accident.

The insurer denied coverage, alleging the plaintiff failed to notify them of a material change in risk (using a personal vehicle for a driving school) and made false statements about his claim.

The court dismissed the motions, finding that the statutory condition regarding change in risk did not apply to uninsured coverage.

Furthermore, the court held that genuine issues requiring a trial existed regarding whether the failure to notify was intentional and whether the plaintiff willfully made false statements, as these issues required credibility assessments best suited for a trial judge.

The plaintiff was catastrophically injured in a motor vehicle accident involving an underinsured driver.

The plaintiff's employer's fleet insurance policy, issued by the defendant insurer through a broker, did not include OPCF 44R (Family Protection Coverage).

The plaintiff sued the insurer, alleging it owed a duty of care to advise on the need for such coverage, similar to a broker, and that it was vicariously liable for the broker's failure to do so.

The insurer moved for summary judgment.

The court granted the motion, finding that the insurer did not owe a duty to advise the insured on coverage gaps, as it conducted risk assessments solely for underwriting purposes, and that the broker was not acting as the insurer's agent.

An insurer applied for judgment enforcing a settlement agreement governing loss transfer claims under s. 275 of the Insurance Act.

The respondent insurer argued the applicant breached the agreement by failing to submit indemnity requests quarterly and asserted it was discharged from further performance.

The court interpreted the settlement term as requiring quarterly submissions where file activity existed and found the applicant breached the provision in some instances.

However, the breach was classified as a breach of warranty rather than a fundamental term, and time was not of the essence.

The respondent was therefore not entitled to terminate the agreement and remained obligated to pay properly submitted claims.