Deborah Berlach

The applicant insurer sought a declaration that the respondent insurer was required to contribute equally to the defence and indemnification of a pharmacist in an underlying negligence action.

Both insurers had issued policies covering the pharmacist, and both policies contained 'other insurance' clauses stating their coverage was excess to any other valid insurance.

The court found that both policies provided primary coverage for the same risk at the same layer.

Applying the principles of equitable contribution, the court concluded that the competing 'other insurance' clauses were irreconcilable.

Consequently, the respondent was ordered to share equally in the costs of defending and indemnifying the insured.

The appellant appealed a trial judgment dismissing his battery claim and awarding the respondent $50,000 on a defamation counterclaim.

The Divisional Court determined it lacked jurisdiction to hear the appeal under section 19(1.2) of the Courts of Justice Act because the original claim exceeded $50,000 and the jury did not indicate what damages would have been awarded had the claim succeeded.

Applying the Dunnington factors, the court exercised its discretion under section 110(1) of the Courts of Justice Act to transfer the appeal to the Court of Appeal rather than dismiss it for want of jurisdiction.

Following a jury trial, the jury found the defendant Hinder punched the plaintiff Pullano but caused no physical, emotional, or psychological injury.

The jury also found Pullano defamed Hinder and awarded Hinder $50,000 in general damages on the counterclaim.

The court declined to award nominal damages for battery, reasoning that it would usurp the jury's role and that the legal basis for battery (offence to dignity or harm) was not met given the jury's findings of no injury.

The issue of vicarious liability for Magna International Inc. and The Stronach Group was deemed moot due to no damages being awarded against Hinder.

Costs were awarded to the defendants against the plaintiff, fixed at $174,509.63, considering the plaintiff's lack of success, inflated claims, and unreasonable conduct, including a social media defamation campaign.

The applicant, a nurse employed by a hospital, was sued for invasion of privacy after she repeatedly accessed a patient's private hospital records without authorization and without being involved in the patient's care.

The insurance carriers appealed a lower court decision requiring them to defend the nurse under a commercial general liability policy.

The Court of Appeal upheld the lower court's decision, finding that the policy language covering invasion of privacy, including intrusion upon seclusion, clearly applied to the unauthorized access to medical records.

The court held that such conduct arose from the hospital's operations and fell within the scope of coverage intended by the policy.

This decision addresses the certification of a common issue regarding the aggregate assessment of damages under s. 24(1) of the Class Proceedings Act, 1992, in a class action concerning improper access to personal health information.

Following the certification of the class action itself, the court considered whether a 'base amount' or 'minimum award' of damages could be determined in the aggregate for all class members, without individual proof of loss.

The court rejected the defendants' arguments that aggregate damages were only applicable to causes of action with a deterrence element or that the case was factually distinguishable from precedent.

It concluded that a common issues trial judge could determine a base amount of damages given that every class member's privacy was breached in the same manner.

The applicant, a hospital employee, sought a declaration that the respondent insurers owed her a duty to defend a civil action.

The underlying action alleged the applicant committed the tort of intrusion upon seclusion by repeatedly accessing a patient's medical records without authorization.

The insurers denied coverage, arguing the applicant was not acting under the direction of the hospital and the claim did not arise from the hospital's operations.

The court held that the policy's privacy coverage inherently included unauthorized access to records, and that the collection and maintenance of medical records fell within the hospital's operations.

The application was allowed, and the insurers were ordered to defend the action.

The plaintiff sought to certify a class action alleging that document reviewers, hired as independent contractors by Deloitte and Procom, were actually employees entitled to benefits under the Employment Standards Act.

The court found some basis in fact for an employer-employee relationship with Deloitte but not with Procom or ATD (a predecessor).

The court certified three common issues against Deloitte but adjourned the motion, requiring the plaintiff to revise the class definition and replace the representative plaintiff due to reliability and disinterest concerns.

The defendant hospital moved to compel the representative plaintiff in an uncertified class proceeding to provide medical records and other documents requested during her cross-examination on a certification affidavit.

The plaintiff sought damages for intrusion upon seclusion.

The court dismissed the motion, finding that the requested documents were not relevant to the certification issues and that their production would be disproportionate to the needs of the certification motion.

The court also clarified that plaintiff's counsel did not breach an undertaking.

The defendants brought a motion to strike portions of the plaintiffs' 70-page Fresh As Amended Statement of Claim under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs' action alleged misfeasance in public office and Charter breaches arising from a withdrawn child protection proceeding.

The Master found she had jurisdiction to hear the motion and concluded that the pleading was overly prolix, contained evidence, argument, and immaterial facts, and violated the rules of pleading.

The motion was granted, striking numerous paragraphs with leave to amend, and costs were awarded to the defendants.

The North Bay Regional Health Centre brought a motion under Rule 21 to preclude Andrea Kendall from acting as a representative plaintiff in a proposed class proceeding.

The hospital argued that a release signed by Kendall in a prior medical malpractice action might impair her ability to represent the class due to a potential conflict of interest.

The court granted leave to file an affidavit from Kendall's former counsel and determined that the evidentiary record was sufficient to interpret the release.

The court found that the release, objectively interpreted based on its terms and the surrounding circumstances, did not bar Kendall's claim for tortious intrusion upon seclusion, as it was specifically limited to claims arising from the prior medical malpractice action.

Consequently, Kendall was not precluded from acting as a representative plaintiff, and the hospital's motion was dismissed.

The applicant, a Rastafarian, alleged discrimination on the basis of creed when the respondent home care agency sent male personal support workers to bathe him.

The applicant claimed his religion strictly prohibits a man from bathing another man.

At a preliminary hearing to determine if this belief was rooted in religion, the Tribunal found insufficient objective evidence, such as religious texts or testimony from elders, to establish a nexus between the applicant's personal belief and the Rastafarian faith.

The application was dismissed.

Following dismissal of a motion for production of documents, the successful defendants sought costs.

The court considered allegations made by the moving party against opposing counsel and a physician defendant, including claims of document alteration and misleading the court.

The court found the allegations unsupported and characterized them as serious and scurrilous.

Applying the principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that such unfounded allegations justified substantial indemnity costs.

Costs were awarded against the plaintiff in favour of the physician defendant on a substantial indemnity basis and modest costs to another defendant.

In an action concerning an alleged conspiracy to deprive the plaintiff of her share of her late father's estate, the plaintiff moved for further production of pre-2004 medical records from the defendant doctor and the federal government regarding her father's shock therapy in 1969 or 1970.

The defendant Birch also moved to compel the plaintiff to answer a refusal to obtain records from Bell Canada regarding an alleged wiretap.

The court dismissed all motions, finding the plaintiff's production requests lacked relevance and violated the principle of proportionality, and that Birch's motion for Bell Canada records was also disproportionate given the minimal relevance and alternative remedies available.

Following settlement of a negligence action concerning damage at a nuclear generating station, the defendant brought a third party claim against its lawyers alleging professional negligence in drafting and advising on contractual arrangements and settlement strategy.

The lawyers in turn issued a fourth party claim against the original defendants and the plaintiff seeking contribution and indemnity under the Negligence Act.

The court held that the third party claim limited recovery to the lawyers’ proportionate degree of fault, meaning they could never be liable for damages attributable to others.

Because contribution rights arise only where a party may be required to pay more than its proportionate share of the plaintiff’s damages, the fourth party claim disclosed no reasonable cause of action.

The claim was struck under rule 21.01(1)(b) of the Rules of Civil Procedure.

The defendants brought a motion to strike a lengthy and verbose statement of claim under Rules 25.06, 25.11, and 27.02 of the Rules of Civil Procedure.

The pleading alleged fraudulent mortgage conduct, wrongful eviction, and related damages totalling $3.3 million.

The court found the statement of claim contained excessive evidence, argument, inflammatory language, and failed to plead material facts disclosing a reasonable cause of action.

It also improperly attempted to advance a counterclaim in a separate action after a statement of defence had already been filed in the related proceeding.

The court concluded the pleading was scandalous, frivolous, vexatious, and an abuse of process, and struck the statement of claim in its entirety without leave to amend.

Following a 20‑day trial in which the plaintiffs obtained judgment exceeding $2.3 million against their insurance broker for failure to procure appropriate coverage, the court determined issues relating to the calculation of the judgment, costs, and interest.

The plaintiffs had delivered a Rule 49 offer to settle for $1.95 million plus interest and costs, which was less than the amount ultimately awarded at trial.

Applying Rule 49.10 of the Rules of Civil Procedure, the court held that the plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Considering proportionality, the conduct of the parties, the length of the trial, and duplication arising from a change of counsel, the court reduced the plaintiffs’ claimed costs and fixed total costs at $475,000 plus disbursements.

Following dismissal of an appeal from an arbitration award in a personal injury action, the successful plaintiffs sought costs on a full indemnity basis, alleging egregious conduct by the municipal defendant, including rejection of a mediation settlement and pursuit of an appeal with little prospect of success.

The defendant argued that costs should be awarded on the ordinary partial indemnity scale and disputed the quantum claimed.

The court held that while the defendant’s conduct and delay could be considered when determining the amount of costs, it did not justify full or substantial indemnity costs.

The court emphasized that costs must reflect a fair and reasonable contribution by the unsuccessful party rather than the exact amount spent by the successful litigant.

Certain claimed amounts relating to earlier Court of Appeal motions were excluded.

Homeowners sued their insurance broker alleging negligence and breach of contract after a burglary resulted in the theft of a safe containing jewellery and cash exceeding insurance policy limits.

The broker had placed policies that limited jewellery coverage to $10,000 without advising the plaintiffs of the limitation or recommending additional coverage.

The court held that an insurance broker who assumes responsibility for a client’s insurance program must review the client’s circumstances, identify coverage gaps, and advise on available insurance products.

The broker failed to meet the standard of care by not conducting a proper review, failing to warn of jewellery coverage limits, and failing to recommend scheduling valuable items.

The court found that the plaintiffs would have obtained adequate coverage if properly advised and rejected arguments of contributory negligence.

Damages were assessed based on the coverage that likely would have been obtained, subject to deductions for premiums and amounts already paid.

The defendant municipality appealed an arbitration award arising from a personal injury claim after the injured party was hurt while tobogganing on municipal reservoir property.

The arbitrator found the municipality fully liable under s. 3 of the Occupiers’ Liability Act, rejecting arguments that the plaintiffs willingly assumed the risk under s. 4, that the property constituted a utility right‑of‑way, or that the plaintiffs were contributorily negligent.

The municipality argued the arbitrator committed errors of law in applying the duty of care, in rejecting contributory negligence, and in awarding damages under the Family Law Act.

The court held that the challenged findings involved questions of fact or mixed fact and law, which were not reviewable on a limited statutory appeal restricted to questions of law.

Even if reviewable, the arbitrator’s conclusions were reasonable and consistent with applicable legal principles.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.