Chris Kinnear Hunter

The appellant reinsurer appealed a trial judgment ordering it to indemnify the respondent retrocedant for its share of a $140 million settlement reached by the lead insurer regarding a business interruption claim.

The appellant argued it was not bound by the 'follow settlements' clause in the retrocession agreement because it had not agreed to the settlement.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant was bound by the single proviso follow settlements clause, that the settlement arguably fell within coverage as a matter of law, and that the lead insurer took proper and businesslike steps in reaching the settlement.

The moving parties sought leave to appeal the decision of Glustein J. dated April 19, 2024.

The Divisional Court dismissed the motion for leave to appeal.

In accordance with the parties' agreement, no costs were awarded.

Following a successful trial where the plaintiff was awarded approximately $8.9 million, the plaintiff sought costs of $3.49 million based on a Rule 49.10 offer.

The defendant argued the offer was not a true compromise and challenged the proportionality of costs and specific disbursements.

The court found the Rule 49.10 offer was a genuine compromise, entitling the plaintiff to partial indemnity costs to the offer date and substantial indemnity costs thereafter.

The court allowed disbursements for fact witness preparation and e-discovery, but disallowed fees for an expert who did not testify.

Costs were fixed at $2.8 million.

The plaintiff, Wiener Städtische Versicherung AG (VIG), a reinsurer, sought to recover funds from the defendant, Infrassure Ltd., a retrocessionaire, under a retrocession agreement.

VIG had paid its portion of a $140 million settlement to Zurich Insurance Company Ltd. (Zurich) for a business interruption claim by Vale (Canada) Limited.

Infrassure denied liability, arguing it was not contractually bound to follow the settlement and that Zurich failed to take proper and businesslike steps.

The court found that Infrassure was contractually bound by the "follow the settlements" clause and that Zurich had taken proper and businesslike steps in reaching the settlement.

Judgment was granted in favour of VIG for the settlement amount and loss adjustment costs, with the court denying VIG's claim for punitive damages.

The applicant and respondent, two brothers, were involved in an arbitration regarding the separation of their trucking businesses.

The arbitrator appointed an inspector to investigate the respondent's conduct and potential unequal benefits.

On this motion, the court affirmed the arbitrator's jurisdiction to appoint an inspector for parties to the arbitration agreement.

The court also appointed an investigative receiver to sell the business and investigate the respondent's transactions, including those involving a non-party, Motion Transport Ltd. The applicant's proposed receiver was appointed due to a potential conflict with the respondent's choice.

The appellants appealed a Master's decision that set aside a Registrar's administrative dismissal of the respondent's action for delay.

The respondent law firm had commenced an action alleging wrongful solicitation of clients by the appellants.

The action was dismissed five years later under Rule 48.14.

The Superior Court found that the Master made several legal and palpable and overriding errors in applying the Reid factors, including equating delay with the litigation not advancing at all, lowering the bar for what it means to prosecute an action, and improperly shifting the burden of proving prejudice to the appellants.

The appeal was allowed, the Master's decision was set aside, and the Registrar's dismissal was upheld.

Class Counsel brought a motion for approval of a further instalment of fees in an ongoing competition law class action regarding alleged price-fixing in the foreign exchange market.

The plaintiffs had settled with fourteen groups of defendants and the action continued against the remaining non-settling defendants.

The court reviewed the risks undertaken, the results achieved, and the docketed time, finding the requested fees of $6,325,000, plus costs and disbursements, to be fair and reasonable.

The fee request was approved.

The plaintiffs in a class action regarding foreign exchange price fixing brought a motion to amend the Distribution Protocol for the $110 million settlement proceeds.

The proposed amendments included transferring unused funds from the Indirect Claims Fund to the Direct Claims Fund, setting a minimum $1,000 payout for approved Direct Claimants, and removing the requirement to consider compensation received in other jurisdictions.

The court granted the motion, finding the amendments were administrative, imposed no additional burden on the defendants, and fell within the court's broad discretion under section 12 of the Class Proceedings Act, 1992.

The appellants appealed an order granting the respondents' motion to enforce a settlement agreement under Rule 49.09 of the Rules of Civil Procedure.

The appellants, initially self-represented in a medical malpractice action, had emailed the respondents offering to dismiss the action on a without costs basis, which the respondents accepted.

The appellants later retained counsel and refused to proceed with the settlement, arguing the email was sent without the authority of all appellants and was merely an exploratory step.

The Court of Appeal upheld the motion judge's finding that an objective reading of the correspondence established a binding agreement on the essential terms.

The Court also found no error in the motion judge's refusal to exercise his discretion to decline enforcement, as the settlement was not unconscionable.

Following a 70-day medical malpractice jury trial where the plaintiff was awarded $3.75 million in damages, the court determined the appropriate quantum of costs.

The plaintiff sought over $3.3 million in costs and disbursements, while the defendants argued for a significantly lower amount, citing proportionality and excessive hours.

The court analyzed the Rule 57 factors, noting the complexity of the case, the necessity of extensive preparation by plaintiff's counsel, and the fact that defence costs themselves exceeded $3.2 million.

The court fixed the plaintiff's costs at $2,404,765 for fees and $628,387 for disbursements, totaling $3,033,152.

During a medical malpractice jury trial, the defendant physicians sought leave under Rule 53.08 to file a supplementary expert report and to elicit testimony from their experts on matters not explicitly stated in their reports.

The court denied leave for the supplementary report, finding it failed to comply with Rule 53.03 by omitting the reasons for its conclusions, and its admission would cause undue prejudice to the plaintiffs.

The court also ruled on several evidentiary objections, narrowly interpreting the 'latency' principle.

The court held that experts cannot use conclusory statements in their reports to ambush opposing parties with new reasons or theories at trial, though exceptions were made where testimony directly responded to new developments during the trial.

The self-represented plaintiffs brought a medical malpractice action against several physicians and hospitals.

After their initial lawyer declined to formally represent them, the plaintiffs emailed defence counsel agreeing to dismiss the action on a without-costs basis.

When the plaintiffs later retained new counsel and sought to continue the action, the defendants brought a motion under Rule 49.09 to enforce the settlement.

The court granted the motion, finding that the email exchange constituted a binding agreement on all essential terms and that there was no evidence of unconscionability to vitiate the settlement.

Prior to a medical malpractice jury trial, the court ruled on several procedural and evidentiary motions.

The plaintiffs had entered into a Pierringer Agreement with the defendant hospital and nurses, leaving only the physicians as defendants.

The court ruled that both the plaintiffs and the physicians could cross-examine the settling nurses at trial.

The court also determined the sequencing and phrasing of jury questions, ruling that standard of care must be determined before causation, and permitting 'caused or contributed' language due to the presence of multiple tortfeasors.

Finally, the court allowed the plaintiffs to use photographs of the amputations in their opening address but restricted the experts' use of lengthy PowerPoint presentations.

The court determined costs for contempt proceedings initiated by Atif Kamran against Dan Andersson and LEO Canada Inc. While Kamran succeeded in having Andersson found in contempt for some breaches, Andersson successfully purged his contempt and resisted many of Kamran's requested penalties.

The court found success was divided, and Kamran's approach to the penalty phase was overly aggressive.

No costs were awarded to LEO Canada Inc. or Geraldine Aquino.

The court awarded Atif Kamran $40,000 in all-inclusive costs from Dan Andersson, on a partial indemnity basis, and dismissed Andersson's cross-motion for costs.

The respondent was sexually assaulted by a priest when he was 11 years old.

The priest fondled and performed oral sex on the respondent on one occasion.

The respondent sued the Diocese for damages on the basis of vicarious liability.

After years of denying liability, the Diocese admitted liability on the first day of trial.

The only issue was damages.

The jury awarded general and aggravated damages of $250,000, loss of income of $280,000, treatment expenses of $5,000, and punitive damages of $15,000.

The Diocese appealed on multiple grounds.

The Court of Appeal upheld the damages awards but split on the punitive damages issue, with the majority upholding the award and the dissent setting it aside.

The defendant brought a motion to impose penalties on the plaintiff for civil contempt regarding a failure to provide access to corporate records.

The plaintiff brought a cross-motion for a declaration that he had purged his contempt.

The court found that the plaintiff had made good faith efforts to comply with the order and had purged his contempt.

The court imposed a fine of $5,000 for the initial contempt and ordered that the previous contempt order be set aside upon payment of the fine.

The self-represented plaintiffs brought three separate actions against two hospitals, seven physicians, and the College of Physicians and Surgeons of Ontario, alleging medical malpractice, falsification of records, breach of privacy, and improper regulatory investigations relating to psychiatric treatment provided between 2004 and 2012.

The defendants brought motions for summary judgment and motions to strike the claims.

The Superior Court of Justice granted the motions and dismissed all three actions.

The court found that the claims against the hospitals and physicians were statute-barred under the Limitations Act, 2002, as the plaintiffs had discovered the claims years before commencing the actions.

The court also held that the hospitals were not vicariously liable for the actions of independent physicians.

The claims against the College were struck because the College owes no private law duty of care to complainants, and the actions constituted an abuse of process by attempting a collateral attack on the statutory complaints and review process.

The defendant Atif Kamran brought a motion for security for costs against the plaintiff Dan Andersson, seeking $150,000.00 under Rule 56.01 of the Rules of Civil Procedure.

Kamran argued Andersson was ordinarily resident outside Ontario and lacked sufficient assets in Ontario to satisfy a costs award.

Andersson conceded non-residency and solvency, but contended his shares in LEO Canada and LEO UK, a country with reciprocal judgment enforcement, constituted sufficient assets.

The court found Andersson's Ontario assets (LEO Canada shares) to be of uncertain value due to ongoing financial impropriety allegations.

While acknowledging the motion was not purely tactical and Andersson's case was not overwhelmingly strong, the court exercised its discretion to moderate the amount, considering Kamran's counterclaim and the reasonableness of anticipated legal work.

The motion was granted in part, ordering Andersson to post $50,000.00 in two installments.

The appellant physician appealed decisions of the Discipline Committee finding him guilty of professional misconduct and revoking his certificate of registration.

The Committee found that the appellant had deliberately overbilled patients for laser eye surgery and directed staff to alter medical records to conceal the overbilling.

On appeal, the appellant argued the Committee misapprehended the evidence, reversed the burden of proof, and imposed an unreasonable penalty.

The Divisional Court dismissed the appeal, holding that the Committee's credibility findings and weighing of the evidence were reasonable and entitled to deference.

The penalty of revocation was also upheld as reasonable given the premeditated nature of the fraud and the need for public protection.

This endorsement addresses the costs of a successful motion brought by defendant Atif Kamran to remove Siskinds LLP as counsel for plaintiffs Dan Andersson and LEO Canada Inc., and to compel document production.

The court awarded costs to Mr. Kamran, payable by Mr. Andersson alone, fixed at $17,000.00 on a partial indemnity basis.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by Mr. Andersson and noting that the defendants' settlement offer was technically deficient and lacked clarity, thus not engaging the presumptive consequences of Rule 49.10.

The court also considered the broader context of the litigation and the inflammatory nature of some allegations made by Mr. Kamran.