David N. Vaillancourt

The appellant insurer appealed a decision that found it had a duty to pay defence costs for the respondents in underlying lawsuits.

The insurer had denied coverage based on alleged material misrepresentation in the insurance application regarding the source of financing for the respondents' real estate development companies.

The Court of Appeal found that the failure to disclose syndicated mortgages as the financing source constituted a material misrepresentation by omission, triggering an exclusion clause in the D&O insurance policies.

The appeal was allowed, and the insurer was declared to have no duty to pay defence costs and was entitled to recover previously advanced funds.

Parkdale Community Legal Services (PCLS) sought leave to intervene as a friend of the court in a motion for leave to appeal concerning an employment dispute and the enforceability of an arbitration clause under the Arbitration Act and Employment Standards Act.

The underlying appeal sought to clarify principles regarding contracting out of the ESA and the application of statutory bars to appeals.

Despite the consent of the appellant and no opposition from the respondent, the court dismissed the motion for leave to intervene, emphasizing that granting intervener status at the leave to appeal stage is a rare and extraordinary event, and PCLS had not met the high onus of establishing their contribution was necessary at this preliminary stage.

The appellant, Thomas Grieco, appealed a summary judgment order requiring specific performance of an agreement of purchase and sale for a lakefront property.

The issues on appeal concerned the validity of purchaser requisitions (specifically a holdback requisition related to non-resident tax under the Income Tax Act), whether the vendor was ready to close, and the appropriateness of specific performance.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the holdback requisition was valid, the vendor was not ready, willing, and able to close due to non-compliance with the APS, and specific performance was an appropriate remedy given the property's unique characteristics.

The applicants sought a declaration that the respondent insurer had a duty to defend them in an underlying action alleging misappropriation of funds from syndicated mortgages.

The insurer had denied coverage, arguing the applicants made a material misrepresentation in their insurance application regarding their source of financing.

The court found that the email relied upon by the insurer lacked detail and precision, and the insurer failed to clarify the ambiguous answers.

The court concluded there was no misrepresentation and ordered the insurer to resume defending the applicants and pay their incurred defence costs on a full indemnity basis.

The appellants, purchasers of a condominium unit, appealed the dismissal of their claim for damages arising from the vendor's breach of an agreement of purchase and sale and their request for relief from forfeiture of their deposit.

The vendor repeatedly extended the occupancy date, which the trial judge found constituted a breach.

However, the trial judge also found that the purchasers had affirmed the agreement by continuing to press for performance and denied relief from forfeiture.

The Court of Appeal upheld the trial judge's findings on repudiation and affirmation, concluding that the purchasers' conduct was consistent with treating the agreement as subsisting.

The Court also affirmed the trial judge's refusal to grant relief from forfeiture, emphasizing the discretionary nature of the remedy and the vendor's incurred expenses.

However, the Court found that the trial judge erred in principle in assessing costs by not adequately considering the vendor's net profit from the resale of the unit.

Consequently, the Court dismissed the appeal on the main issues but granted leave to appeal the costs award, vacating the original costs order and directing each party to bear their own costs for both the trial and the appeal.

This endorsement arises from a case conference in a complex action involving TD Bank and numerous insurance underwriters.

The court addressed the management of three pending discovery motions (defendants' refusals, plaintiff's refusals, and defendants' motion for a second discovery representative) and trial management issues.

The court declined the plaintiff's request to expand their refusals motion, permitted the plaintiff to withdraw their existing refusals motion without prejudice, and vacated the scheduled trial date of September 13, 2021, as the action was not ready.

The court provided specific case management directions for completing discoveries, updating motion materials, and preparing for a future trial date.

This decision addresses the issue of costs following the dismissal of Estates Associates Inc.'s claim against the McCowan defendants and Bryon C. Cohen.

The defendants sought substantial indemnity costs, citing unsubstantiated fraud allegations and offers to settle.

The plaintiff, represented in person, argued the amounts were excessive.

The court awarded partial indemnity costs, finding that while the case was complex, the allegations did not warrant substantial indemnity, and Rule 49.10(2) did not apply to award substantial indemnity to a successful defendant against an unsuccessful plaintiff.

The plaintiffs purchased a pre-construction condominium unit from the defendant developer.

The tentative occupancy date was delayed by nearly 24 months, and the confirmed occupancy date was subsequently extended multiple times.

The plaintiffs were unable to secure mortgage financing and terminated the agreement, seeking the return of their deposit and damages for breach of contract.

The court found that while the developer breached the agreement by extending the confirmed occupancy date without valid unavoidable delays, the plaintiffs had affirmed the contract by continuing to press for performance.

The court dismissed the action and declined to grant relief from forfeiture, finding that the retained deposit did not constitute a windfall for the developer given its incurred costs.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

This decision concerns a costs award following the dismissal of the plaintiff's Rule 45.02 motion.

The court fixed costs at $53,500, payable by the plaintiff to the defendants.

The defendants' request for increased costs, based on supplementary written submissions and a rejected Rule 49 offer to settle, was denied.

The court reasoned that the supplementary submissions related to a point (existence of a "specific fund") that was resolved in the plaintiff's favour, and that elevated costs for a dismissed motion require evidence of egregious or reprehensible conduct, which was not present.

The plaintiff, 3Genius Corporation, brought a motion under Rule 45.02 of the Rules of Civil Procedure for an order requiring Apple Inc. to pay holdback amounts from a transaction with the defendants, Locationary Inc. and Grant Ritchie, into court pending trial.

The plaintiff alleged misappropriation of software and sought damages, an accounting, and tracing.

The court applied a three-part test for Rule 45.02 motions: (i) claim to a specific fund, (ii) serious issue to be tried, and (iii) balance of convenience.

While the court found a reasonably identifiable fund, it determined that the plaintiff's claim was, in essence, a claim for damages, not a legal right to the specific fund, which is not permissible under Rule 45.02.

Furthermore, the balance of convenience did not favour the plaintiff, as there was no evidence of intent to flee or dissipate assets.

The motion was dismissed with costs.

Following trial, the successful plaintiff sought elevated costs on a full indemnity basis, alleging reprehensible conduct by the defendant including theft from his employer and litigation conduct that required strict proof and additional legal research.

The court held that while costs are discretionary, they must be fixed on a principled basis and guided primarily by reasonableness under Rule 57 of the Rules of Civil Procedure.

The court declined to award elevated or full indemnity costs, noting the defendant had already been sanctioned through criminal proceedings and had limited financial means.

Considering proportionality, access to justice concerns, and the modest scale of the litigation, the court fixed costs at $25,000 rather than the $44,874.55 sought.

The plaintiff employer brought a civil action against a former employee alleging conversion, fraud, and breach of fiduciary duty arising from systematic theft of store funds through manipulation of cash register void transactions.

The defendant had previously pleaded guilty to a criminal theft charge and paid partial restitution.

The court accepted the employer’s statistical analysis of business records showing excessive void transactions and found, on a balance of probabilities, that the defendant misappropriated $70,699.93.

The court further held the defendant occupied a position of trust as a night manager and therefore acted in a fiduciary capacity.

Judgment was granted for damages and a declaration that the debt arose from fraud while acting in a fiduciary capacity under the Bankruptcy and Insolvency Act and would survive bankruptcy; punitive damages were refused.