Donald James Dacquisto

This is an appeal concerning the application of the doctrine of equitable contribution between two insurers, Northbridge and Aviva, for the defence and indemnification of a shared insured, Mr. Daneshvari, in an underlying professional misconduct action.

Both insurers' policies contained "other insurance" clauses purporting to be excess.

The Court of Appeal upheld the application judge's finding that the policies were irreconcilable, requiring equal contribution.

The court affirmed that the standard of review for interpreting these specific "other insurance" clauses was palpable and overriding error, not correctness, as they were not standard form contracts with significant precedential value.

The appeal was dismissed, and Aviva was ordered to pay costs to Northbridge.

The plaintiffs brought a motion to restore their action to the trial list after it was struck due to a failure to deliver an amended trial record.

The underlying action involved allegations of lost or damaged personal property following a residential fire.

The court applied the Nissar test and found the plaintiffs provided an acceptable explanation for the delay, primarily related to their former counsel's retirement, and that the defendant suffered no non-compensable prejudice.

The motion was granted with no costs.

An appeal concerning the failure to disclose immediately litigation agreements between a plaintiff (subrogated insurer) and a defendant that converted their adversarial relationship into a cooperative one.

The plaintiff and defendant entered into two agreements (2011 and 2016) whereby the defendant would defend the action and prosecute a third-party claim funded by the plaintiff, and subsequently the plaintiff assigned all its rights in the action to itself.

These agreements were not disclosed immediately but rather piecemeal throughout 2016.

The motion judge found the agreements should have been disclosed but refused to stay the action, finding no prejudice.

The appellate court reversed, holding that failure to immediately disclose agreements that change the litigation landscape constitutes abuse of process requiring a stay of the non-disclosing party's claim as a matter of principle.

Geo.

Williamson Fuels Ltd. moved to stay the action, arguing that the plaintiff and H&M Combustion Services Ltd. failed to disclose a litigation agreement for approximately five years.

The court found that the agreement, which involved the plaintiff's insurer funding H&M's defense and third-party claim, altered the adversarial orientation of the lawsuit and should have been disclosed.

However, applying the principle of proportionality, the court determined that a stay of the action against Williamson was not an appropriate remedy, particularly given that the third-party claim itself was a nullity due to H&M's prior dissolution.

The motion to stay was dismissed.

The appellant appealed the dismissal of his third party claim for delay.

The third party, a dissolved corporation, had successfully moved to dismiss the claim arising from a 1990 oil spill.

The Court of Appeal held that under section 242(1) of the Business Corporations Act, a dissolved corporation has the capacity to defend an action and bring a motion to dismiss without first being revived.

The Court also upheld the motion judge's finding that the appellant's delay was inordinate, inexcusable, and caused presumed and actual prejudice to the respondent.

The appeal was dismissed.

The plaintiffs in a motor vehicle negligence action brought a motion to strike portions of the statement of defence on the basis that it failed to plead material facts regarding damages as required by the Rules of Civil Procedure.

They also sought an order requiring the defendant to answer a list of written discovery questions.

The court held that the impugned pleadings sufficiently set out material facts relating to damages, particularly given that the defendant would not yet possess detailed knowledge of the plaintiff’s medical condition.

The court further found that the proposed written discovery questions constituted an improper and excessive use of the discovery process.

The motion was dismissed in its entirety.

The appellant insurer appealed an order requiring it to defend a defendant in a class action.

After the order was made, the class action against the defendant was dismissed on consent.

The appellant argued the appeal was not moot because the dismissal allowed one plaintiff to potentially bring a future action.

The Court of Appeal dismissed the appeal as moot, finding that the order appealed from would have no relevance to any future action.

The Applicants were injured in a motor vehicle accident and applied for no-fault weekly income benefits.

They argued that the value of their unpaid services in renovating a cottage for their business should be included in calculating their pre-accident gross weekly income, and alternatively, that their partnership agreement constituted an offer of employment.

The arbitrator held that the statutory definition of income does not include the imputed value of unpaid services.

The arbitrator further held that the partnership agreement did not constitute a legitimate offer of employment under the No-Fault Benefits Schedule.

The Applicants were entitled only to the minimum statutory benefit.