David A. Zuber

The plaintiffs appealed a Divisional Court decision that restored a master's order requiring them to post security for costs.

The Court of Appeal dismissed the appeal, confirming that the standard of review on an appeal from a master is the same as from a judge, as set out in Housen v. Nikolaisen.

The court found no basis to interfere with the master's analysis of the evidence or application of principles regarding security for costs.

The appellant appealed a trial judgment dismissing his solicitor's negligence claim against his former lawyer, who had represented him in a motor vehicle accident claim.

The trial judge had found no negligence and no causal connection to the appellant's loss, as the appellant had discharged subsequent counsel and proceeded to trial self-represented.

The Divisional Court applied the standard of palpable and overriding error, found ample grounds for the trial judge's conclusions, and dismissed the appeal.

The plaintiff was seriously injured in a motor vehicle accident.

The driver of the vehicle he was in was convicted of dangerous driving causing bodily harm.

In the subsequent civil action, the trial judge ruled that the criminal conviction and its essential facts were conclusive of the driver's negligence, relying on the abuse of process doctrine to prevent relitigation.

The jury found the convicted driver 100% negligent.

The appellant insurer appealed, arguing the abuse of process doctrine was misapplied and prevented them from showing the other driver was also negligent.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the doctrine to prevent relitigation of the criminal conviction's essential facts, which did not preclude the appellant from attempting to prove the other driver's negligence.

The defendant/appellant, The Economical Insurance Group, sought costs totalling $38,285.86 following its successful appeal regarding a motion for security for costs.

The plaintiffs argued that costs should be in the cause or not payable forthwith.

The Divisional Court found the requested amount excessive and awarded the defendant $5,000 plus disbursements for the motion to the master and the appeal to the motions judge, payable in 60 days.

The court also awarded $5,000 inclusive of disbursements for the motion for leave and the appeal to the Divisional Court, payable in any event of the cause, recognizing the state of the relevant jurisprudence.

The defendant appealed a decision of a motions judge that set aside a case management master's order requiring the non-resident plaintiffs to post security for costs.

The Divisional Court resolved conflicting jurisprudence regarding the standard of review for appeals from a master, holding that the standard is the same as for appeals from a judge: correctness for errors of law, and palpable and overriding error for findings of fact.

The court found that the motions judge erred by treating the appeal as a hearing de novo and substituting his own view of the evidence regarding the plaintiffs' impecuniosity.

The master's finding that impecuniosity had not been established was entitled to deference, and her order for security for costs was restored.

The appellant appealed a final order of a judge of the Superior Court of Justice for a single payment of not more than $25,000.

The Court of Appeal quashed the appeal for want of jurisdiction, holding that under section 19(1)(a)(i) of the Courts of Justice Act, the appeal must be directed to the Divisional Court.

The plaintiffs brought an action against their property insurer and contractors after their home was destroyed by fire, including a subrogated claim on behalf of the Ontario Health Insurance Plan.

The Ministry withdrew its claim during the trial and did not participate.

The jury dismissed the plaintiffs' claims and assessed damages at zero.

The successful defendants sought to have the Ministry held jointly and severally liable for their costs, relying on s. 39(6) of Regulation 552 under the Health Insurance Act.

The trial judge refused to award costs against the Ministry.

The Court of Appeal dismissed the defendants' appeal, holding that s. 39(6) does not apply where the Plan's claim has not been assessed, and the trial judge made no error in exercising her discretion under Rule 23.05.

The appellant appealed a jury verdict awarding the elderly respondents damages, including $250,000 each in general non-pecuniary damages, after an oil spill destroyed their home.

The appellant argued that a mistrial should have been declared due to prejudicial evidence regarding insurance and settlement negotiations, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding no unfair prejudice to warrant a mistrial and concluding that while the general damages award was high, it was reasonably open to the jury given the devastating impact of the loss of the respondents' home.

The primary insurer defended an action arising from a motor vehicle accident and sought equitable contribution for defence costs from the excess insurer.

The excess insurer was not notified of the claim until four and a half years after the accident and was not plainly at risk until shortly before trial.

The application judge ordered the excess insurer to pay a proportionate share of the defence costs.

On appeal, the Court of Appeal held that an excess insurer's obligation to contribute to defence costs is premised on the existence of a duty to defend, which only arises upon notice of a claim.

Given the late notice and the fact that the excess insurer did not sit back and benefit from the primary insurer's work, it was not fair or equitable to require contribution.

The appeal was allowed and the application dismissed.

The appellants appealed a jury verdict dismissing their civil negligence action against the respondents.

The appellants alleged that the plaintiff suffered a severe asthmatic attack caused by exposure to hardeners in ink mixtures at a trade show booth operated by the respondents.

The jury found that the hardeners were not present in the booth.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's production order, the questions left to the jury, or the jury charge.

The court also held that the jury's verdict was supported by the evidence and not unreasonable.

The appellant purchased the respondent's insurance brokerage business from a trustee in bankruptcy.

The agreement of purchase and sale did not contain a non-solicitation clause.

The appellant appealed a motion judge's declaration that the respondent was entitled to solicit his former clients.

The Court of Appeal dismissed the appeal, holding that in an involuntary alienation of assets in a bankruptcy, there is no common law implied obligation on the part of the bankrupt not to compete and solicit former clients.

The moving parties brought a motion before the Court of Appeal.

The court issued a brief endorsement reserving the costs of the motion to the panel hearing the appeal on its merits.

The appellant appealed the judgment of Justice Louise Gauthier.

On consent of the parties, the Court of Appeal for Ontario dismissed the appeal without costs.

The moving parties brought a motion to quash the appellants' appeal on the basis that the notice of appeal was served out of time.

The appellants argued that the 30-day appeal period did not begin until the trial judge released her costs judgment, which occurred months after the jury dismissed the action on the merits.

The Court of Appeal held that a merits judgment and a costs judgment are separate appealable judgments, and the time to appeal the merits judgment runs from its pronouncement, not from the subsequent costs decision.

Although the notice of appeal was served out of time, the Court granted an extension of time to appeal because the appellants had a bona fide intention to appeal, the delay was explained by counsel's mistaken belief regarding the appeal period, there was no prejudice to the moving parties, and the justice of the case warranted the extension.

The motion to quash was dismissed.

The plaintiff was injured in a motor vehicle accident in Ohio and subsequently received Statutory Accident Benefits in Ontario.

The plaintiff brought an action in Ontario against the defendants for damages.

The defendants appealed a motion judge's decision that the substantive law of Ohio applied, arguing that the Insurance Act modified the common law choice of law rule and that the plaintiff's receipt of Ontario benefits precluded an Ohio tort claim.

The Court of Appeal dismissed the appeal, holding that the Insurance Act does not alter the common law rule favouring the law of the place where the tort occurred, and the receipt of benefits does not affect the choice of law analysis.

The third party insurer appealed a decision finding that the plaintiff's action was not barred by the two-year limitation period and that the plaintiff was an insured under the policy as a named driver.

The Court of Appeal dismissed the appeal, holding that the cause of action against the insurer arises only after judgment against the tortfeasor and a refused demand for payment.

The court also affirmed that the plaintiff was an insured as a named driver.

The respondent purchased a vehicle from a client to settle a debt, without obtaining proper documentation or inquiring about the vehicle's history.

The vehicle was later stolen, and the police discovered it had been previously stolen before the respondent acquired it.

The respondent filed an insurance claim, which the insurer denied on the basis that he lacked an insurable interest.

The trial judge and Divisional Court applied the factual expectation test and ruled in favour of the respondent.

The Court of Appeal allowed the insurer's appeal, holding that the factual expectation test does not apply to stolen property and that the respondent's willful blindness regarding the vehicle's origins negated any claim of good faith, thereby depriving him of an insurable interest.

The appellant insurer appealed the trial judge's decisions regarding misrepresentation, waiver, quantum of damages, and an award of solicitor and client costs.

The Court of Appeal upheld the trial judge's finding that the insurer waived its rights under s. 17(3) of the Statutory Accident Benefits Schedule by validating the contract and continuing to accept premiums after becoming aware of alleged misrepresentations.

The appeal on liability and quantum was dismissed.

However, the Court allowed the appeal on costs, reducing the trial costs to a party and party basis, as the insurer was entitled to put the plaintiff to proof of her claim given the misrepresentations.

The defendant insurer appealed a trial judgment finding that the plaintiff, an innocent purchaser of a stolen vehicle, had an insurable interest in the vehicle after it was subsequently stolen from him.

The plaintiff cross-appealed the quantum of damages.

The Divisional Court upheld the trial judge's finding that the plaintiff had a possessory interest constituting an insurable interest, applying the factual expectancy test.

The majority of the court allowed the cross-appeal on damages, increasing the award to $25,900 to reflect the fair market value of the vehicle and rental expenses, rather than limiting recovery to the cash amount paid.

The appellants challenged a judgment requiring payment for emergency spill cleanup following a gasoline tanker rollover.

The court held that new evidence showing there was no agreement on rates undermined the partial summary judgment premised on payment at the respondent's usual rates.

The court further held that the trial judge failed to address whether mark-ups on subcontracted work were recoverable at usual rates or were otherwise fair and reasonable.

The appeal was allowed, the summary judgment and trial judgment were set aside, and a new trial was ordered.