Elizabeth Kathleen Ackman

The plaintiffs brought a motion seeking leave to amend their Statement of Claim and to dismiss a crossclaim brought by the Non-Settling Defendants against the Settling Defendants, following a Pierringer Agreement.

The court granted leave to amend the Statement of Claim, as it was unopposed.

However, the motion to dismiss the crossclaim was dismissed.

The court found that the Pierringer Agreement was not contingent on the dismissal of the crossclaim, and crucially, that the crossclaim was not solely for contribution and indemnity in negligence but also included claims for breach of contract, which are not negated by a Pierringer agreement.

The applicants sought a declaration that Lloyd's Underwriters had a duty to defend them in an action brought by a former business partner, Gavin Dabron.

Dabron's action included claims for breach of confidence and negligent/fraudulent misrepresentation related to a prior settlement and company valuation.

The court found that while the claims initially fell within the policy's coverage, they were ultimately excluded by the "prior and pending litigation" clause, as both the confidentiality and valuation claims arose directly from earlier litigation between the parties.

The application for a duty to defend was dismissed.

Kin Canada and The Kinsmen Club of Oshawa (Applicants) brought an application seeking a declaration that their insurers, Ecclesiastical Insurance Office Public Company Limited and Certain Non-Marine Underwriters o/a Lloyd’s Of London and Lloyd’s Canada (Respondents), had a duty to defend them in an underlying lawsuit.

The underlying claim involved damages related to the discovery of underground oil storage tanks (USTs) on a property sold by The Kinsmen Club of Oshawa in 2005, with allegations of negligent misrepresentation and mismanagement, and vicarious liability against Kin Canada.

The court found that the pollution exclusion clauses in both insurance policies applied, as the true nature of the underlying claim was environmental pollution arising from leaking USTs and the failure to comply with regulatory requirements for their removal.

Consequently, the court dismissed the application, ruling that the duty to defend did not arise for either insurer.

The appellant, a project owner/developer, appealed a summary judgment dismissing its crossclaim against engineering consultants/subcontractors (respondents).

The crossclaim sought contribution and indemnity for damages paid to adjacent property owners, arguing the respondents were not covered under the appellant's wrap-up liability policy for professional services claims, despite a waiver of subrogation clause.

The Court of Appeal upheld the motion judge's decision, finding the respondents were "additional insureds" and the waiver of subrogation applied.

The court affirmed that the policy, a standard form contract, was unambiguous and that the appellant's crossclaim was indeed a subrogated claim, regardless of the timing of payments.

The court reconsidered its previous decision to decline scheduling a summary judgment motion due to the significant and indefinite delays in civil trials caused by the COVID-19 pandemic.

Initially, the court deemed a trial more efficient, but the changed circumstances rendered trial scheduling unrealistic for the foreseeable future.

Consequently, leave was granted to the defendants to bring a summary judgment motion under Rule 20 to test insurance defences, as this mechanism was now considered more efficient for streamlining issues given the prolonged trial backlog.

Directions were provided for electronic filing and virtual hearing protocols.

The applicant, Lo-Ming Lum, brought two motions before the Court of Appeal for Ontario.

These motions arose from an earlier action she initiated, which was dismissed as frivolous and vexatious by the Superior Court, with an order barring her from further proceedings without leave.

The motions sought to set aside an order by a single Divisional Court judge and to obtain leave to appeal another interlocutory order.

The Court of Appeal dismissed both motions, affirming that appeals from a single Divisional Court judge lie to a panel of the Divisional Court, not the Court of Appeal.

The court also issued an order under Rule 2.1 of the Rules of Civil Procedure, requiring the applicant to obtain leave from a single judge of the Court of Appeal before taking any further steps or proceedings related to this action in that court, citing her disregard for prior orders and procedural misuse.

This decision addresses costs following an unsuccessful motion by Tega Homes Developments Inc. to strike amended defences to cross-claims filed by Goodeve Manhire and Paterson Group.

The court had previously permitted the amendments, finding no unfair prejudice.

Tega sought costs for the motion and for "thrown away" trial preparation, alleging delay and an attempt to relitigate insurance coverage.

The court rejected Tega's arguments, noting the amendments were made in accordance with case management directions and that Tega was unsuccessful in resisting them.

Insufficient evidence was presented to demonstrate wasted trial preparation directly attributable to the pleading amendments.

Consequently, the responding parties, Goodeve Manhire and Paterson Group, were awarded costs on a partial indemnity scale, fixed at $12,600.00 and $5,400.00 respectively, payable by Tega Homes Developments Inc.

Michael Dawson sued Halpenny Insurance Brokers Ltd. (HIBL) and other related entities for financial losses stemming from changes to his mother's will, which he alleged were caused by the defendants' actions.

HIBL moved for summary judgment, asserting it had no involvement in financial management or estate planning and no partnership with Halpenny Insurance Benefit Partners Ltd. (BPL), the entity whose principal advised Dawson's mother.

The court found no actual partnership between HIBL and BPL and determined that Dawson failed to establish his mother subjectively believed in such a partnership or relied on it when dealing with the financial advisor.

Consequently, HIBL's motion for summary judgment was granted, dismissing Dawson's claim against HIBL.

This endorsement addresses a request by Goodeve Manhire Inc. and Goodeve Manhire Partners Inc. to reserve the determination of their costs from the Damages Trial until the Liability Trial.

The plaintiffs' action against Goodeve had been dismissed without costs, but Goodeve's cost claim was against Tega Homes Developments Inc. due to a cross-claim.

The court indicated it would grant the reservation if Tega consented or did not oppose.

If Tega opposed, Goodeve was granted an extension to file its costs submissions for the Damages Trial.

The court considered whether a single-purpose corporate purchaser seeking specific performance after a failed land transaction was exempt from the mitigation principle in contract damages.

The majority held that incorporation benefits carry corresponding burdens, including reasonable mitigation efforts where substitute opportunities are available.

It concluded the purchaser lacked a substantial and legitimate basis to avoid mitigation and that the evidentiary record supported available comparable development opportunities.

The dissent would have restored trial damages, finding no palpable and overriding error on mitigation opportunity and reasonableness.

The appeal and cross-appeal were both dismissed, leaving the appellate reduction to nominal damages in place.