David W. Powrie

The plaintiff, TFG Financial Corporation, brought a motion for default judgment seeking unliquidated damages for breach of an equipment lease.

The motion was supported by an affidavit sworn by a lawyer from the plaintiff's firm who lacked personal knowledge of the substantive facts, relying instead on information gleaned from "the file." The court ruled the affidavit inadmissible, finding that it failed to meet the evidentiary requirements for proving unliquidated damages under Rule 19.05, as it largely consisted of hearsay without proper source specification or a deponent with actual corporate knowledge.

Consequently, the motion was dismissed without prejudice, allowing the plaintiff to resubmit with proper evidence.

The Plaintiff, Old Republic Insurance Company of Canada (ORIC), brought a motion seeking a further and better affidavit of documents from the Defendant, Jerry Van Dyke Travel Service Ltd. (JVD), regarding trips cancelled due to the COVID-19 pandemic.

ORIC, an insurer, sought documents related to payments retained by JVD from customers and correspondence between JVD and the Travel Industry Council of Ontario (TICO).

ORIC argued these documents were relevant to its claims of unjust enrichment, breach of trust, and the application of statutory obligations under the Travel Industry Act, particularly concerning coordination of benefits.

JVD opposed, arguing the requests were premature or sought non-existent documents, and that TICO communications were irrelevant.

The court granted ORIC's motion, finding that information on retained payments, even if requiring generation from JVD's electronic systems, constituted a relevant 'document' under the Rules of Civil Procedure, and that TICO communications were relevant to the interpretation and application of the Travel Industry Act, regardless of their binding nature on the court.

JVD was ordered to produce the requested documents.

The insurer brought an application to regularize a dysfunctional insurance appraisal process following a fire at a condominium construction project.

The insured brought a cross-application to terminate the appraisal process.

The court found that the appraisal process had become a 'procedural shipwreck' due to the joint and several fault of the umpire, the appraisers, and the lawyers for both parties.

The court dismissed the insurer's application and granted the insured's cross-application, permanently terminating the appraisal process and leaving the valuation of the loss to be determined in the concurrent court action.

The Regional Municipality of York, City of Vaughan, and York Regional Rapid Transit Corporation brought a Rule 21 motion to stay the plaintiff's action for lack of jurisdiction, arguing that all claims constituted "injurious affection" under the Expropriations Act and fell within the exclusive jurisdiction of the Ontario Municipal Board (OMB).

The plaintiff conceded some claims (reduction in market value, business losses, quiet use and enjoyment during construction) were for injurious affection.

However, the plaintiff contended that claims for physical damage to its building and walkways, claims against Bell Canada and Robert B. Somerville Company Limited, and claims for ongoing vibrations were outside the OMB's jurisdiction.

The court found that while the work by Bell Canada and Somerville was under statutory authority, the alleged physical damage was not proven to be an inevitable consequence of the authorized work, a key requirement for injurious affection.

Consequently, the court stayed the conceded claims but allowed the claims for physical damage, those against Bell Canada and Somerville, and claims for ongoing vibrations to proceed in the Superior Court.

A municipality sought defence coverage as an additional insured under a contractor’s liability policy in a slip-and-fall action allegedly caused by icy sidewalk conditions.

The insurer brought a Rule 21 motion arguing that the statement of claim did not allege snow, ice, or sidewalks and therefore did not trigger the duty to defend.

The court held that particulars delivered in response to a demand form part of the pleadings and may trigger the duty to defend.

Examining the true nature of the claims, the court found that all negligence allegations potentially arose out of the contractor’s operations under the winter maintenance agreement.

The insurer was therefore required to defend or fund the municipality’s defence in full.