David A. Morin

The respondents purchased a property in 2021 and discovered significant foundation defects in a dwelling constructed between 1986 and 1987.

They sued the appellant municipality in 2022 for negligent supervision of the construction.

The motion judge dismissed the municipality's summary judgment motion, finding that the municipality had an ongoing duty to monitor the open building permit, which constituted a continuous omission tolling the 15-year ultimate limitation period under s. 15(6)(a) of the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that a continuous act or omission requires successive or repetitive actionable conduct, which was absent here.

The claim was therefore statute-barred by the ultimate limitation period.

The Court also noted the motion judge erred in recognizing a novel duty to monitor without conducting an Anns/Cooper analysis.

The appellant, an undischarged bankrupt, commenced an action against his former landlord for the disposal of business assets and related mental distress.

The motion judge dismissed the action as a nullity, finding that only the trustee in bankruptcy had the capacity to sue.

On appeal, the appellant argued the assets were exempt 'tools of the trade' under the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, noting the exemption limit was only $11,300, the claim sought damages rather than the return of property, and the mental distress claim was inextricably linked to the property claim belonging to the bankrupt estate.

The Township of McMurrich Monteith brought a motion for summary judgment seeking to dismiss a negligence claim by the plaintiffs, William and Emily Huether, on the grounds that the limitation period had expired.

The plaintiffs alleged the Township was negligent for failing to continuously monitor an open building permit file and conduct necessary inspections for a house built in 1986, whose foundation was failing.

The Township argued its duty ended with construction or permit closure in 1988, making the claim statute-barred under the Limitations Act, 2002.

The court found that the Township had a continuous duty to monitor its open permit file until the building was substantially complete and met occupancy conditions, which never occurred.

Therefore, the ultimate limitation period under s. 15(2) of the Limitations Act did not apply, and s. 15(6) for continuous omissions applied.

The Township's motion for summary judgment was dismissed, and costs were awarded to the plaintiffs.

The defendants brought a motion under Rule 21.01(3)(b) to dismiss the plaintiff's action, arguing that the plaintiff, an undischarged bankrupt, lacked the legal capacity to commence the action.

The plaintiff contended this was a misnomer curable under Rule 5.

The court found that the property forming the basis of the claim vested in the trustee in bankruptcy upon the plaintiff's assignment into bankruptcy, and the plaintiff's failure to disclose these substantial assets to the trustee meant the action, commenced while he was an undischarged bankrupt, was a nullity.

The court distinguished the case from situations where a misnomer could be cured, noting the trustee was a distinct party and had not sought to be substituted.

The motion to dismiss was granted, and the action was deemed a nullity, having been commenced outside the limitation period if re-filed.

The plaintiffs sued their title insurer, FCT, after being denied coverage for alleged construction deficiencies.

FCT brought a third party claim against the tort defendants (the sellers/builders and municipality) for contribution and indemnity.

The plaintiffs brought a cross-motion to strike FCT's third party claim for failing to disclose a reasonable cause of action.

The court granted the cross-motion, finding that FCT had not settled the plaintiffs' claim and therefore could not rely on the Negligence Act, common law, equity, or subrogation rights to claim contribution and indemnity.

The court also granted FCT's motion on consent to have the title insurance action and the tort action heard together or consecutively to avoid duplication.

The municipality appealed a judgment finding it liable for negligence in granting a building permit and conducting inspections of the Breens' cottage, which resulted in significant structural and code deficiencies.

The Court of Appeal upheld the trial judge's findings on duty of care and causation, affirming that the municipality owed a duty to inspect even without a builder's request and was liable for major deficiencies (crawl space, roof ventilation, structural issues) due to its unreasonable conduct.

However, the Court found the trial judge applied an excessively strict standard of care regarding minor deficiencies (stair headroom, insulation gaps), reducing the damages awarded.

The Plaintiff brought a motion to provisionally strike the Defendant's jury notice, citing significant delays in civil jury trials due to the COVID-19 pandemic and the prioritization of criminal jury trials following R. v. Jordan.

The Plaintiff argued that further delay would cause irredeemable prejudice, including increasing statutory deductibles, reduced income recovery, and the need to update expert reports.

The court granted the motion, provisionally striking the jury notice to allow the matter to proceed as a judge-alone trial in the upcoming sittings, finding that justice to the parties would be better served by an expeditious resolution.

The Defendant was granted liberty to move to restore the jury notice if the trial was not reached by a specified date.

This decision addresses costs and prejudgment interest following a seven-day trial where the plaintiffs were awarded $361,875.33 in damages.

The plaintiffs sought $220,915.33 in partial indemnity costs, while the defendant proposed $154,697.70.

The court, applying the modern costs rules, awarded the plaintiffs $130,000 in fees and $50,809.21 in disbursements, totaling $197,709.21 in costs, plus $1,698.90 in prejudgment interest.

The court emphasized proportionality, the non-applicability of the old cost grid, and the need for detailed information for claimed disbursements.

The plaintiff in a motor vehicle accident claim moved to strike the defendant's jury notice, arguing that the COVID-19 pandemic created uncertainty about when in-person jury trials could proceed.

The court granted leave to bring the motion but dismissed it as premature.

The court noted that the case was not yet trial-ready, having not been pre-tried and with a recent medical report served.

Following a wait-and-see approach preferred in the Central East Region, the court held that the motion could be renewed if in-person hearings were suspended again or if the action was not scheduled for trial by April 1, 2021.

The plaintiffs brought a motion to strike the defendant insurer's jury notice, arguing that the COVID-19 pandemic would cause indefinite delays for a civil jury trial.

The action arose from a 2014 motor vehicle accident involving an uninsured motorist.

The court granted leave to bring the motion under Rule 48.04(1), finding the pandemic constituted a substantial and unexpected change in circumstances.

However, the court dismissed the motion to strike the jury notice, adopting a 'wait and see' approach.

The court noted that the Central East Region had established a running civil trial list and was making efforts to accommodate in-person jury trials, making it premature to conclude that retaining the jury would cause disproportionate delay.

Following a trial where the plaintiff was awarded damages for building deficiencies against the builder and the municipality, the court determined the costs of the proceeding.

The plaintiff sought costs on a joint and several basis.

The court awarded the plaintiff partial indemnity costs but declined to make the order joint and several, instead apportioning liability for costs 65% to the municipality and 35% to the builder based on the relative amounts recovered.

The municipality was also awarded costs on its successful cross-claim against the builder.

The plaintiffs commenced two actions arising from the purchase of a property with structural issues: one against Stewart Title for breach of title insurance contract and a "tort action" against multiple parties (vendors, home inspector, township, contractors) for property defects.

Stewart Title moved to consolidate the two actions.

The plaintiffs and two defendants from the tort action (the vendors) opposed consolidation, preferring the actions be heard together or one after the other.

The court, applying Rule 6.01 of the Rules of Civil Procedure, conducted a costs/benefits analysis.

It rejected the notion of an elevated onus for consolidation and found that ordering the actions to be heard together, with common discoveries and pre-trial, best served efficiency and fairness.

This decision was primarily to avoid significant costs and delays associated with potential crossclaims and pleadings disputes that full consolidation would trigger, particularly regarding Stewart Title's potential subrogation claims.

The motion for consolidation was dismissed, and an order for the actions to be tried together was granted with specific directions for common pre-trial and discoveries.

The court issued supplementary reasons to correct three calculation errors in its original judgment (2020 ONSC 3060).

The errors involved the cost of insulating a wall, the omission of alternate living expenses and general damages from the judgment against Mark Grand, and an incorrect contingency reduction applied to damages payable by the Town of Bracebridge.

The corrections resulted in an increase in Mark Grand's liability for repair costs and out-of-pocket expenses, an increase in the total judgment against Mark Grand to include alternate living expenses and general damages, and an adjustment to the joint and several liability of the Town of Bracebridge and Mark Grand for damages.

The plaintiff purchased a renovated property from one defendant, discovering numerous building deficiencies.

He sued the seller for negligent construction and breach of the Ontario Building Code, and the municipality for negligent inspections and breach of statutory duty under the Building Code Act.

The court found the seller liable for negligent construction and breach of contract, and the municipality jointly and severally liable for conceded deficiencies that should have been caught during inspections.

The plaintiff's claim for contributory negligence was dismissed.

Damages were awarded for repairs, out-of-pocket expenses, alternate living expenses, and general damages.

The municipality's crossclaim against the seller for contribution and indemnity was granted, while the seller's crossclaim against the municipality was dismissed.

The appellants, a real estate agent and broker, appealed a trial judgment ordering them to pay damages to the respondents (purchasers) for water and mould damage to a residential home, due to the agent's negligence.

The appeal primarily concerned the measure of damages.

The Court of Appeal found that the trial judge erred by applying the cost of repair measure, as the appellants' negligence did not cause the property defect itself, but rather caused the respondents to enter into a transaction they would have otherwise avoided.

In such cases, the proper measure of damages is the diminution in value of the property.

The Court upheld the trial judge's findings on mitigation of damages and the foreseeability of frost heave damage.

The matter was remitted to the trial judge for reassessment of damages based on diminution in value and for a redetermination of costs from the first trial.

The plaintiff, an 18-year-old soccer player, suffered an electric shock from stray voltage leaking from a light pole at a municipally-owned sports field.

The shock was caused by internal damage to the pole's wiring resulting from a recent lightning strike.

The plaintiff sued the municipality under the Occupiers' Liability Act, claiming physical and psychological injuries, including PTSD.

The Superior Court of Justice dismissed the action, finding that the specific nature of the electrical failure was highly unusual and not reasonably foreseeable.

The court concluded that the municipality had met its standard of care by adhering to regular inspection and maintenance protocols, and was not liable for the plaintiff's injuries.

Following a trial where both the plaintiffs' construction claim and the defendants' counterclaims were dismissed, the court determined the issue of costs.

The plaintiffs had claimed $100,000 for deficiencies and breach of contract, while the defendants counterclaimed for mental distress and injurious falsehood.

Despite divided success, the court found the plaintiffs should not have pursued their claim and that the defendants were entitled to costs for defending the main action.

Applying principles of proportionality and reasonableness, the court awarded the defendants $70,000 in all-inclusive costs.

The appellant, a homeowner, sought indemnification under her property insurance policy for damage to her log house caused by a contractor's restoration work.

The trial judge found coverage existed but dismissed her claim due to late notice of the loss, denying relief from forfeiture.

The Court of Appeal upheld the dismissal but varied the costs awards, finding the trial judge had expanded the scope of issues beyond those directed by the appellate court in its prior decision, thereby increasing the appellant's reasonable cost expectations.

The appellant, FCT Insurance Company Ltd., appealed a trial judgment that found FCT responsible for losses sustained by the respondent, John Breen, arising from structural defects in a cottage property for which he had obtained title insurance.

The trial judge found that the defects rendered the title unmarketable and fell within the coverage of the title insurance policy, relying on the principles established in MacDonald v. Chicago Title Insurance Company of Canada.

The Court of Appeal allowed the appeal, finding that the trial judge erred in applying MacDonald to the facts of this case.

The court distinguished this case on two fundamental grounds: first, Mr. Breen was on notice at the time of purchase of potential problems with the building permit process; and second, even if a final inspection had been conducted, it would not have revealed the hidden construction defects.

The court concluded that the situation involved unmarketability of the land rather than the title, and that title insurance is designed to protect against defects that would be revealed by off-title searches, not hidden defects.

The appeal was allowed and the claim dismissed.

The plaintiffs hired the defendant contractor to build a dwelling on their property.

The contractor ceased work when the dwelling was 50% complete, citing the plaintiff's constant interference and abusive behaviour.

The plaintiffs sued for breach of contract, negligent misrepresentation, and negligence, arguing the contract was unenforceable because the contractor was not a registered Tarion builder.

The contractor counterclaimed for breach of contract and injurious falsehood based on internet posts and a complaint to Tarion.

The court found that the plaintiff breached the contract by interfering with construction methods.

However, the court dismissed all claims and counterclaims, finding no damages were proven by either party and that the Tarion complaint was protected by absolute privilege.