David E. Liblong

The Court of Appeal for Ontario issued a costs endorsement following its decision to allow the appeal brought by Factory Mutual Insurance Company (FM Global) against MDS Inc. and MDS (Canada) Inc. The original appeal concerned insurance coverage for losses from an unplanned reactor shutdown, where the Court found no coverage.

This endorsement addresses the quantum of trial costs to be awarded to FM Global, which was entirely successful on appeal.

The court considered factors under s. 131(1) of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure, including the complexity of issues, counsel rates, and the recoverability of expert disbursements.

This appeal concerned an all-risk insurance policy's coverage for business interruption losses suffered by the insured due to an unplanned shutdown of a nuclear reactor caused by corrosion.

The Court of Appeal reversed the trial judge's decision, holding that the term "corrosion" in the exclusion clause was unambiguous and applied to all forms of corrosion, including unanticipated corrosion.

Furthermore, the exception to the exclusion for "physical damage" did not extend to economic losses such as loss of use, as "physical damage" refers to tangible alteration of property.

The appeal was allowed, and coverage was denied.

This endorsement addresses prejudgment interest, post-judgment interest, and costs following a trial where the Plaintiffs were awarded US$25,000,000.00.

The court determined the appropriate prejudgment interest rate based on the Plaintiffs' actual borrowing costs, the date for currency conversion from USD to CAD, and rejected the Insurer's arguments for tax adjustments.

The Plaintiffs were awarded partial indemnity costs and disbursements.

The Plaintiffs brought a motion to exclude the report and viva voce evidence of the defence expert, Dr. Revie, or alternatively, to limit his evidence to the four corners of his report.

The Plaintiffs argued that Dr. Revie's report constituted oath helping, was merely a critique, failed to comply with Rule 53.03(2.1), and did not meet the common law test for expert evidence admissibility.

The court dismissed the motion, finding that the report, despite some unfortunate wording, did not amount to oath helping in this context, went beyond mere critique, and met the common law admissibility requirements under *Mohan* and *White Burgess*.

The request to limit Dr. Revie's evidence was declined for a pre-trial ruling.

The plaintiff, Terrace Bay Pulp Inc., moved to set aside a registrar's order dismissing its action for delay, which was the second such dismissal.

The motion was brought under Rule 37.14.

The court applied the four Reid factors (explanation for delay, inadvertence, promptness, and prejudice to defendants) contextually.

It found the plaintiff adequately explained the delay, particularly given the complex multi-party litigation, the need to add parties, and difficulties obtaining documents due to CCAA proceedings and asset sale.

The court found no presumption of prejudice arose and no actual prejudice was demonstrated by the opposing fourth party, ABB Inc. The court also considered recent amendments to Rule 48.14 as a relevant factor favoring the plaintiff.

The motion was granted, setting aside the dismissal order and establishing a new timetable.

The applicant, an umbrella insurer, sought reimbursement from the respondent, the primary insurer, for defence costs incurred in a U.S. trademark infringement lawsuit against their mutual insured.

The respondent had denied coverage based on "expected or intended advertising injury" and "intellectual property law or right" exclusions.

The court found that trademark infringement does not necessarily require intent to injure, and the claim included allegations of unintentional conduct.

It also determined that the intellectual property exclusion did not clearly apply because the advertising injury claim was a free-standing claim separate from other intellectual property claims.

The court concluded that the exclusions did not clearly and unambiguously preclude coverage, thus triggering the respondent's duty to defend.

Following the dismissal of an action against an insurer on summary judgment, the court determined the appropriate costs award.

The plaintiffs had advanced a novel negligence claim alleging the insurer owed a duty of care to ensure adequate insurance coverage for a sports association member who became quadriplegic while playing soccer.

After the action against the insurer was dismissed, the insurer sought costs.

Applying the factors in rule 57.01 of the Rules of Civil Procedure, the court reduced the amounts claimed due to duplication of effort and excessive time entries but held that the successful defendant was entitled to partial indemnity costs.

A dispute arose following a fire at a heritage house unit within a condominium development regarding who had the right to control and conduct repairs to the damaged structure.

The unit owner sought an interlocutory and final injunction preventing the condominium corporation and insurer from proceeding with repairs and sought a declaration granting him exclusive authority over restoration.

The condominium corporation argued the declaration and condominium governance documents imposed the obligation to repair damage on the corporation and that the owner had failed to act within a reasonable time.

The court interpreted the condominium declaration and held the corporation had the right and obligation to carry out exterior and roof repairs to restore the property, while leaving interior renovation decisions to the unit owner.

The request for injunctive relief was denied and the corporation was authorized to proceed with exterior restoration.

The insurer brought a motion for summary judgment seeking dismissal of claims alleging that it negligently provided inadequate insurance coverage for members of a sports association.

The plaintiffs argued that the insurer owed a duty to advise that the policy limits were insufficient and should have refused to offer the policy.

The court held that where an experienced broker represents the insured, the insurer owes no direct advisory duty to the insured beyond issuing the policy requested through the broker.

As the evidentiary record showed no direct advisory relationship and the plaintiffs failed to provide evidence supporting the alleged duty, there was no genuine issue requiring a trial.