Brian John Eric Brock

The Court of Appeal for Ontario issued a costs endorsement following its decision to allow the appeal brought by Factory Mutual Insurance Company (FM Global) against MDS Inc. and MDS (Canada) Inc. The original appeal concerned insurance coverage for losses from an unplanned reactor shutdown, where the Court found no coverage.

This endorsement addresses the quantum of trial costs to be awarded to FM Global, which was entirely successful on appeal.

The court considered factors under s. 131(1) of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure, including the complexity of issues, counsel rates, and the recoverability of expert disbursements.

This appeal concerned an all-risk insurance policy's coverage for business interruption losses suffered by the insured due to an unplanned shutdown of a nuclear reactor caused by corrosion.

The Court of Appeal reversed the trial judge's decision, holding that the term "corrosion" in the exclusion clause was unambiguous and applied to all forms of corrosion, including unanticipated corrosion.

Furthermore, the exception to the exclusion for "physical damage" did not extend to economic losses such as loss of use, as "physical damage" refers to tangible alteration of property.

The appeal was allowed, and coverage was denied.

This endorsement addresses prejudgment interest, post-judgment interest, and costs following a trial where the Plaintiffs were awarded US$25,000,000.00.

The court determined the appropriate prejudgment interest rate based on the Plaintiffs' actual borrowing costs, the date for currency conversion from USD to CAD, and rejected the Insurer's arguments for tax adjustments.

The Plaintiffs were awarded partial indemnity costs and disbursements.

An insured claimed under a jewelry insurance policy for a ring valued at over $500,000 allegedly stolen during a late-night beach walk in the Dominican Republic.

The insurer denied the claim based on suspicious circumstances and the insured's prior loss of another valuable ring.

The motion judge granted summary judgment in favor of the insured, awarded punitive damages for bad faith, and ordered substantial indemnity costs.

On appeal, the court found the motion judge erred by refusing to allow the insurer to amend its pleadings to rely on fraud exclusions and by failing to consider credibility issues and suspicious circumstances relevant to whether the loss was proven.

The appeal court set aside the judgment and remitted the matter for trial.

The Plaintiffs brought a motion to exclude the report and viva voce evidence of the defence expert, Dr. Revie, or alternatively, to limit his evidence to the four corners of his report.

The Plaintiffs argued that Dr. Revie's report constituted oath helping, was merely a critique, failed to comply with Rule 53.03(2.1), and did not meet the common law test for expert evidence admissibility.

The court dismissed the motion, finding that the report, despite some unfortunate wording, did not amount to oath helping in this context, went beyond mere critique, and met the common law admissibility requirements under *Mohan* and *White Burgess*.

The request to limit Dr. Revie's evidence was declined for a pre-trial ruling.

The Ontario Provincial Police (OPP) Defendants brought a summary judgment motion seeking to dismiss the claim against them and to strike the claim against Commissioner Christopher D. Lewis without leave to amend.

The plaintiffs opposed the motion.

The court granted the motion to strike the claim against Commissioner Lewis, finding no cause of action against him as vicarious liability for torts committed by OPP officers lies with the Crown, not the Commissioner, pursuant to the Proceedings Against the Crown Act and the Police Services Act.

However, the court dismissed the partial summary judgment motion against the remaining OPP Defendants, emphasizing the judicial caution surrounding such motions, particularly the risks of duplicative proceedings, inconsistent findings of fact, delay, and increased expense when the activities of multiple defendants are intertwined and do not dispose of the entire action.

The appellants, a condominium developer and related entities, appealed a jury verdict awarding damages to the respondents for injuries sustained when an A-frame sign placed on a downtown Toronto sidewalk struck the plaintiff in the face during windy conditions.

The jury found both the developer and the sign contractor liable, apportioning fault 94% to the developer and 6% to the contractor.

The appellants challenged the trial judge's instructions on duty of care, apportionment of liability, and foreseeability.

The Court of Appeal dismissed the appeal, finding no material misdirection warranting intervention.

The cross-appellant's challenge to costs awards was also dismissed.

Atomic Energy of Canada Ltd. (AECL) sought to amend its statement of claim in a long-running insurance indemnity action against Allianz Global Risks US Insurance Company (Allianz).

Allianz opposed the amendments, arguing they introduced new causes of action, were time-barred, lacked particulars, and caused prejudice due to inordinate delay and loss of evidence.

The court found that amendments related to causation theories advanced by Allianz's experts were not new causes of action, but the claim based on assignment of rights from MDS Nordion and Comstock was a new cause of action and time-barred.

The court granted leave to amend certain paragraphs, denied others, and required AECL to provide better particulars for the causation amendments to limit their scope to the theories advanced by Allianz's experts.

The defendant director brought a motion for summary judgment dismissing claims against him personally in a commercial dispute arising from a proposed hotel development joint venture.

The plaintiff alleged the director breached fiduciary duties and induced breach of contract and trust after removing the plaintiff from negotiations with a municipal authority.

The court held there was no genuine issue requiring trial regarding the director’s personal liability.

Directors owe fiduciary duties to the corporation, not to third-party stakeholders, and the plaintiff failed to establish a fiduciary relationship or any trust asset arising from the letter of intent.

The court further held that the director’s actions were taken bona fide on behalf of the corporation and were protected by the Said v. Butt principle.