Daniel Mark Himelfarb

The defendant brought a motion to add Shreeji Hospitality of University, LLC Ramada Clarion (the "Owner") as a third party for contribution and indemnity, stemming from a separate incident in North Carolina involving the plaintiff.

The Owner opposed the motion on grounds of delay, non-compensable prejudice, and lack of jurisdiction.

The court dismissed the motion to add the Owner, finding inordinate and unexplained delay, non-compensable prejudice due to loss of records and reduced ability to obtain information from the original third party, and an absence of a real and substantial connection to Ontario for the Owner.

The court also made limited production orders against Progressive Insurance, the insurer for the original third party and the Owner, but declined to order the production of the entire underwriting file.

This judgment addresses the costs awarded in relation to applications concerning the appointment of an umpire under the Insurance Act.

Wawanesa's application was dismissed due to the respondent's reasonable apprehension of bias caused by Wawanesa's conduct in the umpire selection process.

The respondent's cross-application for umpire selection was successful.

The court awarded the respondent full indemnity costs, finding Wawanesa's conduct "high-handed and oppressive," demonstrating bad faith and disregard for proper procedure.

Despite the respondent's separate application being deemed unnecessary, the court fixed the full indemnity costs at $35,000.00, inclusive of HST and disbursements.

This decision addresses dueling motions in a protracted fire insurance dispute.

The defendant insurer, Wawanesa, sought a Rule 32 inspection of the damaged property, while the plaintiff insureds, the Arvanitopoulos family, sought directions for the appraisal process under the Insurance Act and a mandatory interlocutory injunction to compel continued Additional Living Expense (ALE) payments.

The court dismissed Wawanesa's motion as an improper reprise of a previously decided motion.

It also dismissed the Arvanitopoulos family's requests for appraisal directions, affirming the umpire's authority, and denied their mandatory injunction for ALE, citing the absence of an undertaking, a strong prima facie case, and irreparable harm.

However, as a term of dismissal, Wawanesa was ordered to continue ALE payments for May, June, and July 2022.

This endorsement addresses the costs of a successful motion by the plaintiffs to amend their Statement of Claim, substituting "John Doe" defendants with specific named defendants (the Hurley defendants).

The plaintiffs sought partial-indemnity costs of $10,457.32.

The Hurley defendants argued for costs in the cause or a reduction in the amount.

The court, applying the principle that costs follow the event, awarded the plaintiffs $9,000 in partial indemnity costs, inclusive of HST, payable within 60 days.

The applicant, Royal & Sun Alliance Insurance Company (RSA), sought an order compelling the respondent, Intact Financial Corporation (Intact), to contribute its proportionate share to the settlement of an underlying personal injury claim.

The core issue was whether Intact's liability for coverage was estopped by a previous decision by Mew J., which held Intact's policy to be excess coverage.

The court found that while the duty to defend was estopped, the ultimate question of coverage was not, as it was collateral to Mew J.'s earlier decision.

Applying Supreme Court and Court of Appeal guidance, the court determined that RSA's and Intact's policies provided primary coverage for different risks and were complementary, not overlapping, thus making "other insurance" clauses inapplicable.

Intact was ordered to reimburse RSA for its proportionate share of the settlement.

The applicant, Northbridge General Insurance Corporation, appealed an arbitration decision that found it was higher in priority to pay statutory accident benefits for an individual with advanced dementia.

The arbitrator had determined that the individual was not principally dependent on her daughter for care, which would have shifted priority to the daughter's insurer, RBC General Insurance Company.

The Superior Court reviewed the arbitration decision on a standard of reasonableness, finding no error in the arbitrator's assessment of dependency, which considered the extensive care provided by a long-term care facility versus the daughter's contributions.

The appeal was dismissed.

The insurer defendant brought a motion seeking relief from the implied undertaking rule to compel production of a transcript from a witness’s examination for discovery taken in a separate but related action arising from the same motor vehicle accident.

The responding party argued that the transcript was protected by the deemed undertaking under rule 30.1.01 of the Rules of Civil Procedure and that privacy interests should prevail.

The court held that where the actions arise from the same incident and involve similar parties and issues, the prejudice associated with disclosure is minimal.

The evidence of the witness was central to the liability issue and access to prior sworn testimony was necessary for effective cross-examination.

The court concluded that the public interest and interests of justice outweighed privacy concerns and ordered disclosure, limiting the transcript’s use to impeachment purposes.

Following the dismissal of a third party claim, the third party defendant sought an award of costs.

No responding submissions were filed despite direction from the court.

After reviewing the submissions and the factors under Rule 57 of the Rules of Civil Procedure, the court fixed costs in favour of the third party defendant.

Costs were ordered payable forthwith by the defendants.