Christine A. Powell

The third party brought a motion to set aside a noting in default in a construction lien action, arguing they were never properly served with the third party claim and were unaware of it for nearly five years.

The defendant cross-moved for leave nunc pro tunc to issue the third party claim, as they had failed to obtain the required statutory leave under the Construction Lien Act.

The court set aside the noting in default, finding the third party's explanation for the delay reasonable and that they had a meritorious defence.

The court denied the defendant's request for leave nunc pro tunc, noting the expiry of the limitation period and undue prejudice to the third party, and stayed the third party claim.

An insurance company appealed a decision denying its application for a declaration that it was not obligated to defend or indemnify a policyholder in a negligence action arising from a dirt bike accident.

The insurer had appointed counsel and defended the action for approximately 10 months before denying coverage based on policy exemptions for unregistered vehicles and vehicles used without consent.

The application judge found the insurer was estopped from denying coverage and refusing to defend.

The Court of Appeal upheld this decision, finding no error in the application judge's finding of detrimental reliance and estoppel based on the insurer's conduct in defending the action without securing a non-waiver agreement or reservation of rights letter.

This decision addresses the costs arising from an application where The Commonwell Mutual Assurance Group (CMAG) sought to cease funding Shayne Campbell's defence, and a parallel application where Campbell sought coverage from The Guarantee Company of North America.

Campbell was the successful respondent in CMAG's application.

The court determined that CMAG must substantially indemnify Campbell for his costs and pay The Guarantee Company of North America's costs on a partial indemnity scale, justifying a "Sanderson order" due to CMAG's initial application inducing Campbell's action against Guarantee.

The Commonwell Mutual Assurance Group (CMAG) sought a declaration that it was not obliged to defend or indemnify Shayne Campbell in a personal injury action.

The accident involved an off-road vehicle operated by Campbell, which Guarantee Company of North America (Guarantee) had already denied coverage for under Campbell's automobile policy.

The court found that Guarantee was within its rights to deny coverage due to policy exclusions related to employer-owned vehicles and policy breaches (unlicensed driver, unregistered vehicle).

However, CMAG, having defended Campbell for an extended period (since 2015) without a non-waiver agreement or reservation of rights, was estopped from denying coverage.

The court emphasized that an insurer must be clear about its position and not leave an insured with a false belief of protection.

CMAG's application was dismissed, and Campbell's parallel application against Guarantee was also dismissed.

The defendant was successful on a motion to set aside a default judgment, but was ordered to pay the plaintiff's costs of the action thrown away on a substantial indemnity basis.

The parties agreed on $13,000 for the motion costs.

The court assessed the costs for the default proceeding, reducing the claimed fees for excessive time and unrelated garnishment work, and fixed the additional costs at $10,045, for a total of $23,045 to be paid from funds previously garnished.

The plaintiff obtained default judgment against its insurer for a fire loss claim after the insurer failed to deliver a statement of defence.

The insurer brought a motion to set aside the default judgment and stay a notice of garnishment.

The court found that while the insurer did not provide a plausible explanation for its entire period of delay, it demonstrated an arguable defence on the merits regarding the actual cash value of the building and overpayment of lost rent.

Balancing the prejudice to the parties, the court set aside the default judgment and stayed the garnishment, ordering the insurer to pay substantial indemnity costs thrown away.

The defendants moved to dismiss the plaintiffs' statement of claim, or in the alternative, for leave to file a statement of defence, arguing that the action was barred by section 9 of the Crown Liability and Proceedings Act (CLPA) and section 111(2) of the Pension Act.

The plaintiffs, including a former RCMP Staff Sergeant, sought damages for intentional torts, breach of contract, and Charter violations arising from alleged harassment and assault during her service, for which she had already received a disability pension for PTSD.

The court dismissed the motion to strike, finding that it was not plain and obvious that the claims were entirely barred, particularly for damages not covered by the pension, claims for events after the initial injury, and Charter claims.

The court also found that section 111(2) of the Pension Act did not require a further stay as the plaintiff was not seeking to review or re-assess her pension.

The appellant appealed Tarion's denial of her claim for warranty coverage regarding a new condominium unit.

The appellant sought the return of her deposit, arguing she had validly rescinded the agreement due to delayed closing.

The Tribunal found that the appellant had exhausted her right to rescind the agreement when she signed an occupancy agreement and took possession of the unit.

The appeal was dismissed and Tarion's decision to deny the claim was upheld.

Investors sued a chartered accountant and his consulting corporation alleging breach of fiduciary duty and negligence after losing money in complex domestic and offshore investment structures connected to an investment club and related entities.

The court found the advisor promoted the investments, failed to disclose commissions, and reassured the investors about the legitimacy of the structure despite serious regulatory concerns and structural deficiencies in the investment scheme.

The relationship involved trust, reliance, and vulnerability sufficient to create a fiduciary duty.

The advisor breached that duty by failing to disclose conflicts, failing to warn about regulatory issues, and misrepresenting the diligence performed.

Liability was imposed for the plaintiffs’ investment in the domestic issuer but not for later investments made after regulatory warnings, which the court held the plaintiffs unreasonably failed to mitigate.

Following dismissal of a civil action arising from alleged flood-related damages, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs relying on unaccepted Rule 49 offers to settle and their complete success at trial.

The court applied Rules 49 and 57 of the Rules of Civil Procedure, considering the offers, the complexity of the technical issues, the time spent by counsel, and the parties’ reasonable expectations regarding litigation costs relative to the amount in dispute.

The court awarded partial indemnity costs up to the date of the defendants’ first offer and substantial indemnity costs thereafter, while reducing certain disbursements, including expert and transcript expenses, as excessive.

The plaintiffs sued the defendant home builder in negligence and nuisance after their basement flooded, causing agreed damages of $65,328.99.

The plaintiffs alleged that the defendant's construction activities on the adjacent lot obstructed a municipal drainage ditch, causing water to back up and overwhelm their sump pump.

The court preferred the evidence of the defendant's expert, finding it more likely that spring runoff overwhelmed the sump pump or that the pump malfunctioned independently.

The court concluded the plaintiffs failed to prove causation on a balance of probabilities and dismissed the action.

The plaintiffs sued the defendant home builder in negligence and nuisance after their basement flooded, causing over $65,000 in agreed damages.

The plaintiffs alleged that the defendant's construction activities on the adjacent lot obstructed a municipal drainage ditch, causing water to back up into their sump pump system and overheat the pump.

The court weighed conflicting expert evidence and preferred the defendant's expert, finding it more likely that spring runoff overwhelmed the sump pump or that the pump malfunctioned independently.

The court concluded the plaintiffs failed to prove on a balance of probabilities that the defendant's actions caused the flood, and dismissed the action.

The applicant developer brought an application seeking a declaration that the respondent mechanical trade contractor was contractually required to defend and indemnify it in an underlying construction defect action regarding a condominium project.

The court distinguished the duty to defend in a commercial construction contract from that in an insurance policy, noting the indemnification clause was drafted by the developer and must be interpreted strictly against it (contra proferentem).

The court dismissed the application against the contractor's parent company but ordered the contracting subsidiary to pay 33.33% of the developer's reasonable legal fees in the underlying action, reflecting its limited obligation.

The Appellant purchased a condominium unit and the vendor delayed closing due to a province-wide elevator strike, invoking the Unavoidable Delay provisions.

The Appellant argued the vendor failed to properly notify him of the end of the delay period, entitling him to $7,500 in delayed occupancy compensation.

The Licence Appeal Tribunal found that the vendor took all reasonable steps to inform the Appellant and properly set a new firm occupancy date based on the best available scheduling information.

The Tribunal upheld Tarion's decision to deny the warranty claim.

The plaintiff moved for leave to amend its statement of claim to add its insurance broker as a defendant and to assert negligence and breach of duty claims arising from insurers’ denial of coverage in related litigation.

The proposed claims were contingent on the plaintiff failing to obtain indemnity and defence costs from the insurers.

The court considered Rules 5.04(2) and 26.01 of the Rules of Civil Procedure alongside the mandatory two‑year limitation period under the Limitations Act, 2002.

It held that the plaintiff had knowledge of the material facts underlying the broker’s alleged negligence when the insurers denied coverage, more than two years before the motion to amend.

Because the limitation period had expired and no evidence rebutting discoverability was provided, the broker could not be added as a party.

The defendants brought a motion arguing that the plaintiff failed to perfect a construction lien under the Construction Lien Act because its Statement of Claim did not explicitly plead enforcement of the lien and instead referenced trust provisions.

The court considered whether the issued Statement of Claim, read together with the mandatory Information for Court Use form and the surrounding procedural context, sufficiently demonstrated an intention to enforce the lien within the statutory 45‑day period.

Applying a liberal interpretation of lien pleadings and considering the earlier registration of the lien and payment of security into court, the court found the plaintiff intended to enforce the lien despite deficient drafting.

The court concluded that the lien had been effectively perfected and preserved.

The plaintiff was permitted to amend its pleading to clarify the claim.

In a motor vehicle personal injury action, the defendant brought a motion concerning undertakings, refusals, and production from non-parties following examinations for discovery.

The defendant sought disclosure of defence medical reports and settlement particulars from the plaintiff’s prior motor vehicle litigation.

The court held that defence medical reports obtained in prior litigation are subject to the deemed undertaking rule under Rule 30.1 and cannot be disclosed without leave of the court or consent of the original producing party.

The court also confirmed that settlement amounts and particulars from prior litigation are protected by settlement privilege and were not relevant in the circumstances, particularly where the accidents were years apart.

The contested disclosure requests were denied, and the plaintiff was awarded costs.

The plaintiff moved to change the place of trial from Ottawa to Kingston in an action concerning an unpaid promissory note and alleged negligent legal services relating to property in Kingston.

Although the events, damages, and subject-matter of the dispute were located in the Kingston area, the proceeding had been commenced and substantially advanced in Ottawa, including discoveries and mediation.

Applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure, the court weighed the enumerated factors governing venue transfer and emphasized that the moving party bears the burden of showing that a transfer is desirable in the interests of justice.

The court found that most convenience and cost considerations were neutral or favoured maintaining the existing venue, particularly given the late stage of the request and the plaintiff’s lack of a compelling explanation for the change.

The motion to transfer the trial venue was therefore dismissed.

The appellant tenant was evicted and his belongings disposed of while he was out of the country, due to a rent arrears dispute arising from a prematurely deposited post-dated cheque.

After the Landlord and Tenant Board (LTB) upheld the eviction and found no illegal conduct by the landlords, the appellant sued the landlords in Superior Court for damages.

The motion judge struck the statement of claim as an abuse of process because the issues had already been decided by the LTB.

The Court of Appeal dismissed the appeal, confirming that the LTB had exclusive jurisdiction over the matter and the proper route was to appeal the LTB decision to the Divisional Court.

Following an appeal where the appellants failed to file written submissions on costs, the Divisional Court awarded costs to the successful respondents.

The court awarded $30,000 to Woods Parisien, $20,000 to the Ville de Hawkesbury, and $20,000 to Menzies, payable by the appellants within 30 days.