Christopher J. Rae

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

A pre-hearing conference was held regarding an application by AMCO Farms Inc. challenging a municipal by-law under the Farming and Food Production Protection Act, 1998.

On consent of the parties, the Board ordered that this application be heard at the same time as six other applications challenging the same by-law.

The Board set hearing dates and directed the parties to develop plans for disclosure and the presentation of evidence.

The Ontario Greenhouse Vegetable Growers (OGVG) brought a motion to be added as a party to an application by Great Lakes Greenhouses Inc. challenging a municipal by-law restricting supplemental greenhouse lighting.

The municipality opposed the motion.

The Board found that OGVG, as the regulatory body for greenhouse vegetable production in Ontario, was directly affected by the outcome and could make a useful contribution to the technical aspects of the case.

The motion was granted and OGVG was added as a party.

The applicant requested an order at a pre-hearing conference to limit the scope of evidence at the upcoming hearing, specifically seeking to exclude evidence regarding the impact of artificial greenhouse lighting on dark skies and bird migration.

The Board declined to limit the scope of evidence at the pre-hearing stage, finding it would be premature to preclude evidence without understanding it in the full scope of the hearing before a full panel.

The plaintiff, a candidate for the leadership of the Conservative Party of Canada, was disqualified by the Dispute Resolution Appeals Committee (DRAC) following a complaint about his campaign materials.

He brought a summary judgment motion seeking to restore his candidacy, arguing breach of contract, procedural unfairness, and bad faith.

The court found that while the process was fair and there was no bad faith, the DRAC lacked the authority under the party's rules to disqualify a candidate.

The court set aside the disqualification and restored the Chief Returning Officer's original ruling, which imposed a penalty but not disqualification, without prejudice to the Leadership Election Organizing Committee's right to consider the matter.

The applicant, Dimitrious Karahalios, a disqualified leadership candidate for the Conservative Party of Canada, brought an application seeking reinstatement and release of campaign funds.

The respondents, including the Conservative Party and its Fund, brought a preliminary motion to strike the application, arguing it was barred by the Leadership Rules and disclosed no reasonable cause of action, and that individual committee members were not proper parties.

The court dismissed the motion to strike the application for not disclosing a reasonable cause of action, finding it was not plain and obvious that the Leadership Rules contractually precluded the applicant's claims.

The individual respondents (members of the Dispute Resolution Appeals Committee and Chief Returning Officer) were removed as parties by agreement.

The court converted the application into an action and scheduled a summary judgment motion to efficiently determine the merits of the dispute, given the complex and novel legal issues regarding the judicial review of unincorporated associations.

The plaintiff's wife died of metastatic breast cancer after suffering a fall that caused fractures.

The plaintiff claimed accidental death benefits under an employer-provided group insurance policy, which was denied by the insurer because the death was caused by illness, not an accident.

The plaintiff sued the employer, Chrysler, alleging negligent misrepresentation regarding the policy terms, negligent selection of the insurer, and negligent infliction of mental distress.

Chrysler moved for summary judgment.

The court granted the motion and dismissed the action, finding no genuine issue for trial as the employer's benefit summaries contained clear disclaimers directing employees to the actual policy wording, and the employer's conduct was not flagrant, outrageous, or malicious.

Canada Post Corporation brought an urgent motion seeking an injunction against protestors blockading its mail processing plants.

After the injunction was granted, protestors continued their actions, leading Canada Post to bring a further urgent motion for directions and amendments to the order regarding police assistance in enforcement, specifically concerning the Peel Regional Police's actions.

The court dismissed Canada Post's motion, reaffirming that courts cannot direct police on how to carry out their operational discretion in enforcing civil orders, and that contempt proceedings are the only available remedy for non-compliance.

The plaintiff brought a motion to set aside a Registrar's order dismissing the action for delay.

The defendants Frank Naccarato and Radeon Technologies Ltd. opposed the motion, while Radiant Hospitality Systems Ltd. took no position.

The court applied a contextual approach, considering the explanation for the litigation delay, the inadvertence in missing the deadline, the promptness of the motion, and the absence of actual prejudice to the defendants.

The court found the delay adequately explained, the deadline missed due to inadvertence, the motion brought promptly, and no actual prejudice affecting the defendants' ability to defend.

Consequently, the motion was granted, setting aside the dismissal order and extending the time to set the action down for trial, with no costs awarded.

The applicants brought an application seeking a declaration that an Option Agreement affecting their real estate was invalid.

They argued the respondent breached the agreement by failing to pay a proportionate share of property taxes for over two years, and that the agreement violated the subdivision control provisions of the Planning Act.

The court dismissed the application, finding no breach of the tax provision because the respondent had maintained a credit balance through estimated lump-sum payments.

While the court agreed the Option Agreement technically violated section 50(3)(b) of the Planning Act by allowing the grantor to retain a fee in abutting lands, it held the agreement was saved by section 50(21) because it contained an express condition making it subject to Planning Act compliance.

The plaintiff in a wrongful dismissal action sought leave under Rule 48.04 to bring a motion to serve an expert report regarding the definition of 'information technology professional' after the action had been set down for trial.

The defendant had pleaded that the plaintiff was exempt from overtime pay under the Employment Standards Act, 2000 because he was an information technology professional.

The court dismissed the motion, finding that the plaintiff had known of this defence throughout the litigation and provided no plausible explanation for the delay in seeking an expert report beyond counsel's inattention.

The applicants, members of the Ontario Medical Association (OMA), brought a motion for interlocutory orders in a governance dispute concerning a proposed Physician Services Agreement (PSA).

They sought a new notice of general meeting, a revised proxy form, a comprehensive membership list including phone numbers, and the appointment of a neutral chair.

The court dismissed requests for a new notice of meeting, the expanded membership list, and a neutral chair, finding no strong case for intervention on those points.

However, the court granted the request to void the OMA's circulated proxy form, deeming it unhelpful, unclear, unbalanced, and unfair, and directed the OMA to prepare a revised form.

The court exercised its jurisdiction under sections 297 and 332 of the Corporations Act to ensure the fair conduct of the members' meeting and the integrity of the proxy system.

The plaintiff railway company sought interlocutory injunctive relief after former employees joined a direct competitor and allegedly downloaded and circulated confidential commercial information, including customer lists and revenue data, to solicit the plaintiff’s clients.

The parties agreed to an injunction preserving confidential information and restricting its use, but disputed whether an independent court-appointed monitor should oversee compliance with the order.

The court found the defendants had initially fallen short in complying with an earlier undertaking but had taken substantial remedial steps, including forensic searches, employee discipline, and written directives prohibiting use of the information.

The court concluded that appointing a monitor with broad investigative and supervisory powers would be overly intrusive into the defendant corporation’s business operations.

The court held that the contempt power and the existing order sufficiently protected the plaintiff’s interests.

The plaintiff brought a motion to extend the deadline for setting the action down for trial.

The defendant opposed the motion and brought a cross-motion to amend a previous order to reflect a consent agreement that the action would be dismissed with no reinstatement if not set down by October 30, 2014.

The court amended the previous order to reflect the consent agreement but exercised its discretion to extend the timetable, finding that the defendant had not established non-compensable prejudice and shared the blame for the delay by failing to produce its affidavit of documents.

The deadline was extended to October 30, 2016.

The plaintiff commenced an action for negligence after a fire on the defendant's railway lands damaged its business.

The action was struck from the trial list due to outstanding undertakings and later administratively dismissed for delay after a motion judge refused to restore it.

The Court of Appeal allowed the appeal, finding the motion judge erred in principle by focusing on allocating blame for the delay rather than whether the plaintiff's explanation was reasonable, and by presuming prejudice from the passage of time.

The Court reweighed the evidence, found the plaintiff's explanation acceptable and no non-compensable prejudice to the defendant, and ordered the action restored to the trial list.

The plaintiff brought a motion seeking an order compelling the defendant insurance broker to enter into and comply with a discovery plan under Rule 29.1 of the Rules of Civil Procedure.

The defendant agreed in principle but sought to delay examinations for discovery pending the determination of its motion to stay the action until the resolution of related insurance coverage litigation.

The court held that the balance of prejudice favoured proceeding with discovery, noting the plaintiff’s substantial financial loss and the risk of indefinite delay if discovery were postponed pending the stay motion and possible appeals.

While declining to prejudge the merits of the proposed stay motion, the court concluded that the action should continue to move forward.

A discovery plan was imposed with deadlines for affidavits of documents and examinations for discovery.

The plaintiff moved to restore an action to the trial list after it had been struck due to outstanding undertakings and incomplete trial readiness requirements.

The court applied the test requiring a reasonable explanation for delay and absence of non-compensable prejudice to the defendant.

Although some delay involved difficulties obtaining documents and funding an expert report, the court found the delay largely attributable to the plaintiff and not reasonably explained.

The court also accepted that the long passage of time since the underlying events raised concerns about fading witness recollection.

The motion to restore the action to the trial list was dismissed and costs were awarded to the defendant.

The appellant, Jetport Inc., appealed a Master's order regarding discovery refusals in three related actions arising from an aviation insurance coverage dispute.

The court allowed the appeal in part, ordering the respondent insurer to answer questions about its course of conduct with other insureds regarding policy exemptions, finding them relevant to the pleadings.

The court also relieved the appellant from answering a question about claims against other third parties, as it was not relevant to mitigation.

However, the court upheld the Master's order requiring the appellant to answer questions about whether its employee sought legal advice from in-house counsel regarding a pilot clause, finding that disclosing the fact of such discussions did not breach solicitor-client privilege.

Following the dismissal of an appeal from a decision of a Master, the court addressed the issue of costs.

The respondents sought $20,540.16 on a partial indemnity basis, while the appellant argued that $7,500 inclusive of fees, taxes, and disbursements would be reasonable.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court considered the importance of the issues, the potential financial stakes, the complexity of the appeal, and the reasonable expectations of the parties.

Although the court found that some of the respondents’ docketed time appeared excessive, it accepted that substantial preparation was justified given the stakes and the commercial context.

The court fixed costs at $16,000 inclusive of HST and disbursements as fair and reasonable in the circumstances.