David J. T. Mungovan

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The court reviewed the parties' written submissions and largely agreed with the appellant's position, finding it fair and reasonable.

The court slightly increased the award to the main respondent to reflect its greater participation.

Costs were awarded to the respondents on a partial indemnity basis, totaling $30,000.

The appellant insurer appealed a decision finding it had a duty to indemnify the respondent insured under a commercial general liability policy for damages arising from defective concrete.

The insurer relied on the 'Your Work' and 'Rip and Tear' exclusions.

The Court of Appeal dismissed the appeal, holding that the 'Your Work' exclusion was ousted by the 'subcontractor' exception because the entity that supplied the defective concrete was properly characterized as a subcontractor.

The Court also found the 'Rip and Tear' exclusion incomprehensible and therefore inapplicable.

The appellant purchased stock in bulk from a company in financial difficulty but failed to comply with the Bulk Sales Act.

The seller applied the proceeds of the sale against its debts owed to its two highest-ranking secured creditors.

The respondent, an unsecured creditor, commenced proceedings against the appellant seeking an accounting under s. 16(2) of the Act.

The Supreme Court of Canada allowed the appeal, holding that the buyer's duty to account must be interpreted purposively.

Since the proceeds were paid to priority-ranking creditors and the respondent was not deprived of any money it would have received on a ratable distribution, the appellant was not liable to account to the respondent.

Homeowners and the Ontario New Home Warranty Program brought actions against a concrete supplier (Bertrand) and a cement manufacturer (Lafarge) for defective concrete foundations caused by the introduction of fly ash.

The trial judge found Lafarge 80% liable and Bertrand 20% liable in negligence for failing to conduct adequate testing.

Lafarge appealed the liability findings and the costs award (which ordered Lafarge to pay 90% of costs due to its conduct at trial).

Bertrand cross-appealed seeking full indemnity.

The Court of Appeal dismissed the appeals and cross-appeals, upholding the trial judge's findings on liability, apportionment, and costs, while varying the judgment slightly to reflect settlements reached during the appeal regarding prejudgment interest and one homeowner's garage.

The Province of Ontario and the predecessor in title of Boise Cascade Canada entered into an agreement in 1905 to develop hydro-electric power on the Rainy River.

The agreement required the company to supply the Town of Fort Frances with electrical power at a rate not exceeding $14 per horsepower per annum.

The agreement created a reserve of 4,000 horsepower for use on the Canadian side.

The Town's energy consumption eventually exceeded the 4,000 horsepower reserve.

The Supreme Court of Canada held that the company's obligation to supply power to the Town at the fixed price of $14 per horsepower per annum was limited to the 4,000 horsepower reserved under the agreement.