Dan Rabinowitz

The plaintiff was involved in a single-vehicle accident on Highway 417, allegedly caused by an unpaved bump.

He failed to provide the required 10-day statutory notice to the Ministry of Transportation under s. 33(4) of the Public Transportation and Highway Improvement Act, only serving a claim 30 months later.

The defendant moved for summary judgment.

The court found no genuine issue for trial, concluding the plaintiff lacked a reasonable excuse for the delay, particularly after retaining counsel, and failed to rebut the presumption of prejudice caused by the road being repaved before notice was given.

The action was dismissed.

The appellant, a hotel owner, sought recovery for fire damage to its building caused by a fire in the respondents' leased restaurant space.

The appellant's insurer brought a subrogated action in the appellant's name.

The respondents argued that the lease terms barred the insurer from pursuing the claim.

The motion judge dismissed the action, finding that the landlord's covenant to insure and the tenant's contribution to insurance costs triggered the principles established in the Supreme Court trilogy, preventing subrogation against the tenant.

The Court of Appeal reversed, holding that the lease contained explicit "notwithstanding" language that overcame the trilogy principles and preserved the tenant's liability for its own negligence.

This action involved a subrogated claim by a landlord's insurer against its tenant for fire damage.

The matter came before the court as a special case to determine if the plaintiff landlord was precluded from proceeding with the subrogated action due to the terms of the lease.

The court analyzed the lease provisions, particularly the landlord's covenant to insure and the tenant's contribution to premiums, in light of established Supreme Court of Canada jurisprudence on subrogation rights against tenants.

The court found that the lease did not contain clear, express, and unambiguous language to contract out of the general rule barring subrogation, despite clauses referring to the tenant's liability for negligence.

The special case question was answered in the affirmative, barring the subrogated claim and leading to the dismissal of the action.

Coachman Insurance Company sought a declaration that it had no duty to defend or indemnify its insured, Barry Kelley, under a homeowner's policy for a negligence claim arising from an all-terrain vehicle (ATV) accident.

The policy contained a 'motorized vehicle' exclusion.

The court found the exclusion ambiguous and, construing it narrowly, determined it applied to allegations of Kelley's direct physical interaction with the ATV causing it to flip over.

However, the exclusion did not apply to distinct allegations that Kelley impeded the driver's escape or was intoxicated, as these were considered separate concurrent causes not solely 'due to' the use of the motorized vehicle.

Consequently, Coachman was found to have a duty to defend Kelley for the claims not falling under the exclusion.

The plaintiff moved for summary judgment on liability arising from injuries sustained when a hotel balcony collapsed during wedding photographs.

The moving party argued that the collapse during ordinary use established the inn’s liability.

The defendant contended that the balcony was intended for far fewer occupants and raised contributory negligence based on evidence that the plaintiff had concerns about the balcony’s capacity before stepping onto it.

Applying the guidance in Combined Air Mechanical Services Inc. v. Flesch, the court held that determining contributory negligence and apportionment would require a full appreciation of the evidence that could not be achieved on a summary judgment record.

Because a trial would still be required to assess liability and apportionment, partial summary judgment was inappropriate.