Elizabeth Bowker

Following a major apartment building fire, the owner and property manager were found liable as one defendant.

The appellant insured both the owner and property manager, while the respondent insured only the property manager.

After the respondent paid the full excess claim to the tort plaintiffs, it sought to recover half the amount from the appellant.

The Court of Appeal upheld the trial judge's decision that the respondent was entitled to recover 50% from the appellant under the principles of equitable contribution and unjust enrichment, as the appellant retained an obligation to indemnify the owner.

The appellants, a nurse and a hospital, appealed a jury verdict finding them liable for a brain injury suffered by an infant during birth.

The jury found the nurse 75% liable and the hospital 25% liable, while dismissing claims against the delivering physician.

The appellants argued the verdict was unreasonable due to insufficient evidence of causation and lack of expert evidence on the hospital's standard of care, and that the trial judge erred in the jury charge.

The Court of Appeal dismissed the appeal, holding that the jury was entitled to determine the hospital's standard of care without expert evidence, that there was sufficient evidence to support the jury's finding of causation based on a robust and pragmatic application of the 'but for' test, and that the jury charge contained no reversible errors.

Following dismissal of a negligence action against an insurance broker relating to failure to advise about optional income replacement benefits under the Statutory Accident Benefits Schedule, the defendants sought costs.

The court considered factors under s. 131(1) of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure.

The plaintiff argued the case raised novel issues and that access to justice considerations should reduce the award, but the court rejected those submissions, finding the issues were not novel and that adverse costs are a normal consequence of unsuccessful litigation.

Applying rule 49 settlement principles, the court awarded partial indemnity costs up to November 18, 2010 and substantial indemnity costs thereafter, subject to a reduction in claimed trial preparation hours.

Representative plaintiffs in a certified class proceeding brought a motion seeking court approval of a $4 million settlement arising from allegations of physical, sexual, emotional, and psychological abuse at a residential school for children with learning disabilities and behavioural issues.

The court considered the settlement under s. 29(2) of the Class Proceedings Act, 1992, which requires approval if the settlement is fair, reasonable, and in the best interests of the class.

Significant litigation risks were identified, including uncertainty regarding insurance coverage, the defendants’ impecuniosity, and the possibility of contested liability and damages assessments.

The settlement created a points-based claims process with capped compensation and provided for charitable cy-près distribution of any residual funds.

The court concluded that the settlement, counsel fees representing 25% of the recovery, and honoraria for the representative plaintiffs were fair and reasonable.

The defendants brought a motion for summary judgment seeking dismissal of the plaintiff’s commercial tenancy action on the basis that it was statute‑barred under the Limitations Act, 2002.

The plaintiff alleged that construction, signage interference, and other landlord conduct caused a severe decline in its restaurant business at a shopping mall.

The court held that the limitation period began when the plaintiff knew the defendants’ conduct had caused damage to the business, not when the business ultimately vacated the premises.

Evidence from the plaintiff’s principal indicated that he knew the business was “sinking” by July 2006.

As the action was not commenced until February 25, 2009, the claim was brought outside the two‑year limitation period and was dismissed on summary judgment.

The appellants, plaintiffs in a certified class action alleging abuse at a residential school, appealed a motion judge's order granting the respondents leave to issue third-party claims for contribution and indemnity against the students' parents and guardians.

The appellants argued that the third-party claims were legally untenable because they had limited their claims to the several liability of the respondents.

The Divisional Court allowed the appeal, applying the Court of Appeal's decision in Taylor v. Canada, holding that where a plaintiff limits their negligence claim to damages caused solely by the defendant, there is no right to claim contribution and indemnity.

Furthermore, liability for breach of fiduciary duty is not subject to apportionment.

The order permitting the third-party claims was set aside.

The representative plaintiffs in a class action against a private school sought leave to appeal a motions judge's decision permitting the defendants to bring third party claims against the parents of the students, who were members of the certified class.

The plaintiffs argued that because they intended to limit their claims to the several liability of the defendants, third party claims for contribution and indemnity were legally barred, relying on the Court of Appeal's decision in Taylor.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision and noting the issue's importance to access to justice.

The insured was left with quadriplegia following an automobile accident in Jamaica caused by an underinsured motorist.

The insured sought coverage under the underinsured motorist endorsement of their standard Ontario Automobile Policy.

The insurer denied coverage, relying on the territorial limitation in the main policy.

The motion judge found the endorsement ambiguous and ruled in favour of the insured.

On appeal, the Court of Appeal held that the endorsement clearly incorporated the territorial limitation of the main policy.

The appeal was allowed, and the court declared that the endorsement did not provide coverage for the accident in Jamaica.

The appellant law firm appealed the dismissal of its application for a declaration that its professional liability insurer had a duty to defend it in an underlying action.

The insurer denied coverage based on a policy exclusion for claims arising out of the provision of investment advice or services.

The appellant argued the claim fell within an exception to the exclusion because it involved the use of the firm's trust account and the preparation of joint venture documents.

The Court of Appeal dismissed the appeal, finding that the use of a trust account as a vehicle for investment funds does not amount to the performance of professional services, and the underlying claim was essentially for business advice concerning the safety of an investment.

Following the release of the court's reasons for judgment in the appeal, the parties were unable to agree on the quantum of costs.

The Court of Appeal reviewed the written submissions and fixed the respondents' costs of the appeal at $50,000 for fees, plus disbursements and GST.

The plaintiff suffered catastrophic brain injuries when her vehicle struck the rear of a tractor-trailer that was blocking the roadway.

The trial judge awarded approximately $4.9 million in damages and substantial costs, including a premium.

The defendants appealed the quantum of damages, the non-deductibility of statutory non-earner benefits, the modified discount rate, and the costs award.

The Court of Appeal dismissed the appeal regarding damages, non-earner benefits, and the discount rate, finding the trial judge's conclusions were supported by the evidence.

However, the court allowed the appeal in part regarding costs, setting aside the portion of counsel fees that exceeded the maximum permitted under the costs grid and setting aside the costs premium awarded against the no-fault insurer.