Callum J. Micucci

The plaintiff sought to put several questions regarding pecuniary damages (past loss of income, future loss of income, future cost of care, housekeeping/home maintenance, and loss of competitive advantage) to the jury.

The court ruled that there was insufficient "reasonable evidence" to support these questions, as the plaintiff's evidence was too speculative, lacked specificity, and did not adequately account for contingencies or causation, especially given subsequent accidents.

Consequently, the judge dismissed the plaintiff's request to put these questions to the jury.

The defendant brought a threshold motion to dismiss the plaintiff's claim for non-pecuniary damages under s. 267.5(5) of the Insurance Act, arguing her injuries did not meet the "permanent serious impairment of an important physical, mental or psychological function" threshold.

Despite a jury finding the plaintiff 60% liable and the defendant 40% liable, and awarding $40,000 in non-pecuniary damages, the court granted the defendant's motion.

The court found the plaintiff's expert medical evidence unreliable due to incomplete and inaccurate information provided by the plaintiff, and the plaintiff's own credibility was significantly undermined by inconsistencies regarding her injuries, activities, and financial situation.

Consequently, the plaintiff failed to establish that her injuries met the statutory threshold, and her claim for general damages was dismissed as statute-barred.

The defendant brought a motion for a mistrial following the plaintiff's opening address to the jury.

The court found that the plaintiff's opening address contained inflammatory remarks, appeals to emotion, personal opinions, misstatements of fact, and improper references to the defendant's eye condition and the defendant's insurer.

The court determined that the cumulative effect of these improprieties created a real danger of prejudice and a miscarriage of justice, which could not be cured by jury instructions without negatively impacting the jury's perception of counsel and the plaintiff.

Consequently, the motion for a mistrial was granted.

This appeal concerned an insurer's duty to defend its insured, Panasonic Eco Solutions Canada Inc., against two breach of contract claims in an arbitration.

The professional errors and omissions policy excluded contractual liability unless the liability would exist in the absence of the contract.

The application judge found a duty to defend one claim (Engineering Agreement) but not the other (Proceeds Agreement).

The Court of Appeal allowed the insurer's appeal and dismissed the insured's cross-appeal, finding no duty to defend either claim.

The court held that the liquidated damages claim under the Engineering Agreement was purely contractual and the sole remedy, thus falling within the exclusion.

The claim under the Proceeds Agreement was for a contractual debt, and related negligent misrepresentation and unjust enrichment claims were also not covered by the policy.

Panasonic Eco Solutions Canada Inc. sought a declaration that its insurer, XL Specialty Insurance Company, owed it a duty to defend an underlying arbitration claim.

The arbitration involved claims for liquidated damages arising from an Engineering Agreement and damages from a Proceeds Agreement.

The insurance policy was an errors and omissions policy with a contractual liability exclusion.

The court granted the application for a duty to defend in respect of the liquidated damages claim, finding that the facts alleged could support a claim for negligence despite being pleaded as breach of contract.

However, the court dismissed the application for the Proceeds Agreement claim, determining it was purely contractual, a debt claim, or involved negligent misrepresentation of intent to pay, which fell within the contractual exclusion or the policy's exclusion for equitable relief.

XL was granted the right to control the defence of the liquidated damages claim.

Costs were ordered to be borne by each party due to divided success.