Elizabeth Bowker

The defendant brought a motion for the production of numerous documents following a further examination for discovery of the plaintiff's representative.

The defendant sought documents that were not considered by the plaintiff's damages expert in preparing his report, arguing they were relevant to the calculation of damages and mitigation.

The court dismissed the motion, holding that documents not forming the foundational information used by the expert cannot be ordered produced under Rule 31.06(3).

Furthermore, the court found the requested disclosure to be entirely disproportionate under Rule 29.2.03 given the late stage of the proceeding and the volume of irrelevant documentation sought.

The plaintiff sought costs for three contested motions in a class action regarding a listeria outbreak: a motion for leave, a certification motion, and a summary judgment motion.

The defendants argued for no costs or a reduced award, citing divided success and the novelty of the legal issues.

The court found the plaintiff was the successful party overall and that the issues were not novel.

The court awarded the plaintiff costs of $10,000 for the leave motion, $120,000 for the certification motion, and $20,000 for the summary judgment motion, plus disbursements and HST.

The defendant, The Corporation of the City of Brampton, brought a summary judgment motion seeking to dismiss the plaintiff's action, but later abandoned it.

The plaintiff, Inzola Group Limited, sought costs for the abandoned motion on a substantial indemnity basis.

The court found the plaintiff was entitled to partial indemnity costs for the period up to September 2016 and substantial indemnity costs for the period between September and November 2016, concluding that the defendant acted unreasonably in delaying the abandonment of the motion after critical evidence emerged.

The court fixed the total costs payable by the defendant to the plaintiff.

The plaintiff, Svitlana Novak, sued the defendants for breach of contract and misrepresentation, alleging she was promised a full-time recreation assistant position that was subsequently given to another individual.

The defendants denied any such agreement or representation and raised a limitations defense.

The court dismissed the plaintiff's claim, finding it was statute-barred under the Limitations Act, 2002, as the plaintiff failed to rebut the statutory presumption of discoverability.

Alternatively, the court found the plaintiff failed to prove on a balance of probabilities that a guaranteed full-time employment agreement or specific representation was made.

The appellant commenced a claim under a commercial property insurance policy for windstorm damage and for breach of the insurer's duty of utmost good faith.

The insurer moved for a declaration that the appellant's losses could be determined by appraisal under the Insurance Act.

The motions judge granted the motion.

On appeal, the appellant challenged the motion judge's jurisdiction, argued that the two-year delay barred appraisal, and contended that the order impermissibly bifurcated the jury trial.

The Court of Appeal dismissed the appeal, holding that the motion judge had jurisdiction, that no abuse of process occurred despite the delay, and that the appraisal process would simply narrow the issues for trial rather than impermissibly bifurcate it.

The defendant insurer brought a motion to have the quantum of the plaintiff's property loss claim determined by the appraisal process under the Insurance Act, rather than by the court.

The plaintiff opposed, arguing the request was too late and would improperly bifurcate the trial, as the action also included claims for bad faith and punitive damages.

The court granted the motion in part, holding that the appraisal process is mandatory under the Insurance Act for determining the quantum of loss, regardless of the delay or the presence of other claims in the action.

The claims for recovery under the policy were stayed pending the appraisal.

The plaintiff, a Mr. Sub franchisee, sought to certify a class action against Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc. following a listeriosis outbreak in 2008 linked to the defendants' ready-to-eat (RTE) meats, which were exclusively supplied to Mr. Sub franchisees.

The plaintiff alleged negligence, including breach of duty to provide fit products, duty to warn, and negligent misrepresentation, resulting in economic losses such as lost sales, profits, and goodwill.

The defendants challenged the existence of a cause of action, particularly regarding foreseeability, proximity, and policy considerations for economic loss claims.

The court found that the plaintiff had satisfied all five certification criteria under the Class Proceedings Act, 1992, including disclosing a viable cause of action for economic losses based on negligent supply of dangerous goods and negligent misrepresentation.

The court rejected the defendants' arguments that the claim was essentially for breach of continuous supply or that policy concerns regarding indeterminate liability should negate a duty of care, noting the close relationship between the parties and the public danger posed by the contaminated product.

The motion to certify the class action was granted.

The plaintiff sought leave of the court to bring its motion for certification of a class proceeding and for its appointment as representative plaintiff, pursuant to s. 2(3)(b) of the Class Proceedings Act, 1992, after the statutory 90-day period had expired.

The defendants opposed the motion, arguing prejudice due to the delay.

The court granted leave, finding that the 90-day rule is frequently not strictly observed, there was no evidence of actual prejudice to the defendants (who had preserved documents and were subject to prior investigations), and the court's consent to a timetable for the certification motion implied leave.

The court emphasized that denying leave would be unjust given the circumstances and the defendants' late challenge to the plaintiff's right to bring the motion.

The defendants, having successfully dismissed the plaintiff's $5 million conspiracy claim on summary judgment, sought substantial indemnity costs.

The plaintiff argued against costs, citing no reprehensible conduct and challenging the defendants' bill of costs.

The court awarded the defendants $250,000 in substantial indemnity costs, finding the plaintiff's unsubstantiated allegations of dishonesty, illegality, and conspiracy to be reprehensible and deserving of sanction, particularly given the potential impact on the defendants' reputation and the complexity and duration of the litigation.

The defendants moved under Rule 21.01(b) to strike the plaintiff's amended statement of claim for disclosing no reasonable cause of action, specifically challenging allegations of intentional interference, nuisance, and conspiracy against individual directors and the building manager.

The court, applying a low threshold for pleading a cause of action, found that the plaintiff's claim sufficiently pleaded the necessary facts for all three torts against the individual defendants, including their personal liability for tortious conduct.

The motion to strike was dismissed.

The plaintiff trustee sued the defendant appraisers for negligent misrepresentation regarding a property valuation that allegedly caused losses to 13 mortgage investors.

The defendants moved to examine the 13 individual investors for discovery and to amend their statement of defence and counterclaim.

The court granted the request to examine the investors, finding their individual reliance on the appraisal was relevant, but limited each examination to one hour to ensure proportionality.

The court also permitted the amendments to the pleadings, save for certain allegations regarding the trustee's general mortgage practices and undisclosed conflicts of interest, which were struck as irrelevant and lacking particulars.

The plaintiff, a medical and rehabilitation services provider, sued the defendant insurance company and its employees for conspiracy to cause economic harm, alleging they conspired to deny claims and care plans without due regard to their merits.

The defendants brought a motion for summary judgment, and the plaintiff brought a cross-motion.

The court found no evidence of an agreement between the defendants to harm the plaintiff, noting that the employees were acting within the scope of their employment and could not conspire with their employer.

The court granted the defendants' motion for summary judgment and dismissed the action.

The plaintiff's action for damages was dismissed after his vacant house burned down and his insurance claim was denied.

The court determined the costs payable to the successful defendants.

The court fixed costs on a partial indemnity basis at $15,000 for the broker and $5,000 for the insurer, noting the insurer had improperly continued to charge premiums and the broker had poor record-keeping.

The plaintiff brought a motion to compel answers to extensive undertakings and refusals arising from discoveries in a municipal procurement action alleging biased disqualification, misleading of council, and improper favouring of the successful bidder.

The court imposed a staged timetable for outstanding undertakings, rejected the respondent's request for a lengthy extension, and held that certain questions said to require expert analysis instead sought fact evidence.

On refusals, the court required narrower questioning regarding the Integrity Commissioner's investigations, ordered production and answers concerning the final agreements with the successful bidder, and held that communications between municipal councillors and counsel were not protected by solicitor-client privilege solely because councillors were decision-makers.

Applying litigation privilege principles, the court required disclosure of non-privileged communications and particulars for any privilege claims, while resolving the remaining refusals on a question-by-question basis.

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 appellants, a law firm and its partners, were sued for damages arising from the allegedly improper appointment of a lawyer as a committee of a client's person and estate, and from the allegedly negligent administration of the client's estate.

The appellants' professional liability insurer argued that the allegations constituted a single claim under the policy because they arose from 'related' errors, omissions, or negligent acts.

The application judge agreed.

On appeal, the Court of Appeal reversed the decision, finding that the two claims arose from errors, omissions, or negligent acts that were sufficiently different in nature and kind, and therefore were not 'related' within the meaning of the policy.

The defendant corporation moved for summary judgment dismissing a claim in which the plaintiff sought declarations of ownership of company shares and oppression relief under the Business Corporations Act.

The plaintiff alleged entitlement to common and Class B shares arising from an asset purchase agreement and option agreement connected to the sale of an engineering business.

The court held that the plaintiff failed to comply with the contractual requirements for subscribing to the shares, including payment and exercise of the option price specified in the agreements.

As a result, the plaintiff never acquired shareholder rights and the claim had no reasonable prospect of success.

Summary judgment was granted dismissing the action in its entirety.

The moving party sought an extension of time to appeal a Small Claims Court decision dismissing its negligence claim against a mediator.

The mediator had issued a Certificate of Non-Compliance that erroneously referred to a separate legal action.

The Divisional Court dismissed the motion, finding no merit to the proposed appeal because the moving party could not establish any damages causally connected to the error, and any remedy would properly be against the Condominium Corporation rather than the mediator.

Insured homeowners sought summary judgment claiming entitlement to guaranteed replacement cost coverage under a homeowners insurance policy after their residence was destroyed by fire.

Instead of rebuilding on the original site, the insureds purchased a different home in another location and asserted that this constituted a “replacement” within the meaning of the policy’s endorsement.

The insurer maintained that the endorsement only modified the monetary limit of coverage and did not displace the policy’s requirement that replacement occur on the same site to qualify for replacement cost benefits.

The court held that the endorsement must be interpreted in conjunction with the underlying policy and that replacement cost coverage remained contingent on reconstruction at the same location.

Because the insureds relocated rather than rebuilding, their loss was limited to actual cash value coverage.

The appellant operated a restaurant in a mall and sued the landlord and property manager for negligence and breach of contract, alleging construction activities caused its business to fail.

The motion judge granted summary judgment dismissing the action, finding the appellant ought to have discovered its claim more than two years before commencing the action.

The Court of Appeal allowed the appeal, holding that whether the claim was discovered when the business was struggling or when it finally closed was a genuine issue requiring a trial.