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.

The plaintiffs, who process and sell medical radioisotopes produced at the Chalk River nuclear reactor, claimed US$25 million under the Contingent Time Element coverage of their all-risks insurance policy after a heavy water leak forced a 15-month shutdown of the reactor.

The defendant insurer denied coverage, relying on exclusions for corrosion and nuclear radiation.

The court found that the leak was caused by fortuitous pitting corrosion, not anticipated generalized corrosion, and therefore the corrosion exclusion did not apply.

Even if it did, the resulting physical damage exception would apply because the leak rendered the reactor unusable.

The court also rejected the application of the idle period and nuclear radiation exclusions.

The plaintiffs were awarded the policy limit of US$25 million, plus compound prejudgment interest based on their actual cost of borrowing, as the court exercised its discretion under the Courts of Justice Act to fully compensate the plaintiffs for the insurer's wrongful withholding of funds.

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 plaintiff brought a motion for summary judgment against his insurer for the theft of a $550,000 heirloom ring and a gold chain while on vacation in the Dominican Republic.

The insurer denied the claim, alleging insufficient proof and lack of cooperation, but expressly declined to plead fraud.

The court found the plaintiff had fully cooperated and proven his loss.

The court granted summary judgment for the value of the ring and chain, and awarded $50,000 in punitive damages due to the insurer's bad faith conduct in stringing the plaintiff along after secretly deciding to deny the claim.

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 Applicant was catastrophically injured in a 2008 motor vehicle accident and received Income Replacement Benefits (IRBs).

In 2014, the Respondent acknowledged a miscalculation in the initial IRB rate and paid the differential of $15,003.56, but refused to pay interest.

The Applicant applied to the Licence Appeal Tribunal for interest, a special award, and costs.

The Tribunal found that the Respondent had sufficient information in 2008 to correctly calculate the IRBs, meaning the differential was overdue and interest was payable under section 46 of the Schedule.

However, the Tribunal declined to order a special award or costs, finding the Respondent's actions were not unreasonable or in bad faith.

Following a 20‑day trial in which the plaintiffs obtained judgment exceeding $2.3 million against their insurance broker for failure to procure appropriate coverage, the court determined issues relating to the calculation of the judgment, costs, and interest.

The plaintiffs had delivered a Rule 49 offer to settle for $1.95 million plus interest and costs, which was less than the amount ultimately awarded at trial.

Applying Rule 49.10 of the Rules of Civil Procedure, the court held that the plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Considering proportionality, the conduct of the parties, the length of the trial, and duplication arising from a change of counsel, the court reduced the plaintiffs’ claimed costs and fixed total costs at $475,000 plus disbursements.

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.

Case conference endorsement in a civil action involving claims against a provincial gaming corporation and casino operators.

The court issued procedural directions concerning case management, amendments to pleadings, disclosure of expert reports, production of medical records, and scheduling of future attendances.

The court declined to appoint a case management judge and set timelines for expert evidence and document production.

Directions were also given for any pre-trial motions to be brought before the same judge, with permission for counsel to attend by telephone.

The appellant physician appealed a trial judgment finding him 25% liable for negligence in failing to timely diagnose a newborn with phenylketonuria (PKU).

The infant had two borderline elevated screening tests, and the appellant ordered a third screening test rather than a diagnostic quantitative test.

The appellant argued the trial judge erred by failing to apply the 'respectable minority principle' from ter Neuzen, asserting his decision was supported by expert evidence.

The Court of Appeal dismissed the appeal, holding that the trial judge properly weighed the conflicting expert evidence, found the defence expert's opinion unreliable, and correctly concluded the standard of care required a diagnostic test.

The appellant, a paediatric dental surgeon, appealed a trial judgment regarding damages for a wrist injury sustained in a fall at the respondent hospital.

She argued the trial judge erred in calculating her 2007 and future income loss, provided insufficient reasons, and failed to apply the 'real and substantial risk' test for future loss.

The Court of Appeal dismissed the appeal, finding the trial judge correctly determined that the 2007 income drop was not caused by the injury, provided adequate reasons, and properly applied the real and substantial risk test to award $100,000 for future pecuniary loss based on the risk of a tendon rupture.

The appellant doctor appealed a trial judgment finding him liable for the respondent's psychiatric injury, which developed after the doctor failed to promptly disclose a talar fracture in the respondent's ankle.

The Court of Appeal upheld the trial judge's finding that factual causation was established on the 'but for' test, as the respondent would not have suffered the psychiatric harm had the doctor disclosed the fracture.

The Court also found that legal causation was established, as it was reasonably foreseeable that a breach of the doctor-patient trust could cause a recognized psychiatric illness in a person of ordinary fortitude.

The appeal was dismissed, and the damages and costs awards were upheld.

The appellants challenged a trial costs order requiring them to pay the respondent more than $509,000 in fees, much of it on an elevated indemnity basis after a without-costs offer to settle.

The Court of Appeal held that elevated costs are warranted only through the operation of rule 49.10 or where the losing party engaged in reprehensible or egregious conduct deserving of sanction.

Because the offer did not engage rule 49.10 and there was no sanction-worthy conduct, the elevated award was an error in principle.

The court further held the amount awarded was not fair and reasonable under the governing costs principles and reduced the fees award to $300,000.

Sharalea Farms Inc. appealed to the Tribunal regarding alleged defects in a Case IH tractor, a Case IH loader, and a Hardi sprayer purchased from Vandenbrink Farm Equipment.

The Tribunal first determined it had jurisdiction to hear disputes involving used farm implements and contractual warranties under the Farm Implements Act.

On the merits, the Tribunal dismissed the claims regarding the tractor and loader, finding that the alleged defects either arose after the applicable statutory and contractual warranties had expired or were not proven to be defects.

However, the Tribunal found that several defects in the sprayer were reported during the contractual warranty period and ordered the dealer to repair or replace the defective components.

The plaintiffs sued the Toronto and Region Conservation Authority (TRCA) and others following the drowning death of a 7-year-old child who allegedly slipped down the concrete banks of Mimico Creek.

The TRCA moved for summary judgment, arguing it had no involvement with the adjacent apartment properties.

The motions judge dismissed the motion, and the TRCA appealed.

The Divisional Court dismissed the appeal, finding that the TRCA's affidavit evidence only addressed the adjacent properties and failed to address the plaintiffs' allegations regarding the design, maintenance, and attractive nuisance of the creek itself.

Because the TRCA did not meet its initial evidentiary burden to show there was no genuine issue for trial, the burden did not shift to the plaintiffs.