George J. Karayannides

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

On a post-trial distribution motion arising from a failed land development scheme, the court addressed competing claims between settling investors and investors who proceeded through trial and appeals.

The settling parties obtained judgment on their settlement agreements, but were denied equitable liens over preserved funds because their rights were contractual, the defendants were not shown to own the preserved funds, and equity favoured the trial parties who preserved assets and bore the burdens of the litigation.

The court also held that the trial parties lacked standing to raise limitation defences to enforcement of the settlements, and excluded a disputed email under settlement privilege.

The funds paid into court were ordered distributed pro rata among the trial parties, subject to specified limitations tied to claims against one defendant.

The plaintiff, Jeff Mailloux, brought a motion under s. 29 of the Class Proceedings Act, 1992, for leave to discontinue a proposed class action against Nissan Canada Inc. with prejudice and without costs.

Nissan consented to the motion.

The class action concerned a products liability claim for pure economic losses related to defective Takata airbag inflators.

The motion for discontinuance was brought due to significant changes in the legal landscape regarding compensation for pure economic loss from negligent supply of faulty goods, which greatly diminished the prospects of a substantial economic recovery for the class members.

The court granted the motion, finding that the action was commenced for a proper purpose, putative class members were not prejudiced, and the proposed notice of discontinuance was satisfactory.

This appeal concerns the interpretation of primary and excess directors' liability insurance policies, specifically regarding the availability and premium calculation of an Optional Extension Period (OEP) coverage.

The appellant, Assicurazioni Generali S.p.A. (excess insurer), argued that its Excess Policy did not include an OEP option or, alternatively, that the premium should be US$1.5 million.

The respondent, Cronos Group Inc. (insured), contended the OEP was incorporated via a "follow form" clause and the premium should be twice the basic premium of the Excess Policy, consistent with the primary policy's ratio.

The Court of Appeal dismissed the appeal, affirming the application judge's finding that the Excess Policy included the OEP option and that its premium was twice the basic premium, based on a holistic interpretation of the policies and commercial reasonableness.

The applicant, Cronos Group Inc., sought a declaration that it had a contractual right to exercise an Optional Extension Period (OEP) under its Excess Directors’ and Officers’ Liability Policy issued by the respondent, Assicurazioni Generali S.P.A., and that it successfully exercised this right.

The respondent denied coverage, arguing the OEP was not incorporated into the Excess Policy and the premium paid was insufficient.

The court found that the OEP was incorporated into the Excess Policy by reference to the Primary Policy, as it was not explicitly excluded.

The court also determined that the applicant's calculation and payment of the OEP premium, based on twice the original policy premium, was commercially reasonable and consistent with prior representations.

The application was granted, declaring the OEP right enforceable and the premium calculation valid.

This is a costs endorsement from the Court of Appeal for Ontario.

The respondents were awarded their costs of the appeal in the sum of $60,000, inclusive of disbursements and applicable taxes.

This decision followed an appeal from a Superior Court judgment and a prior costs order.

The appellant, a refugee in Canada, sued his former Kuwaiti employers and others for damages arising from alleged torture and conspiracy in Kuwait.

The motion judge stayed the action for want of jurisdiction, finding no real and substantial connection to Ontario and declining to apply the forum of necessity doctrine.

The Court of Appeal dismissed the appeal, holding that the motion judge made no error in principle and his discretionary decision, based on a lack of cogent evidence supporting the appellant's claims of exceptional circumstances, was entitled to deference.

The appellant railway company appealed the dismissal of its claim for demurrage charges against the respondent shippers.

The appellant argued it was entitled to charge demurrage under its published tariffs pursuant to the Canada Transportation Act, even without a contract.

The Court of Appeal dismissed the appeal, holding that a contract, express or implied, is required to charge demurrage.

The court found no error in the trial judge's conclusion that no implied contract existed given the respondents' repeated refusals to pay, nor was there any unjust enrichment.

The plaintiffs, investors in a real estate development, sought to register a Certificate of Pending Litigation (CPL) against three lots and to register a preservation order regarding a vendor take-back mortgage on title.

The property had been sold to a third-party developer, Brampton G&A. The court dismissed the motion, finding that the parties had previously agreed not to register orders on title, the property was an investment property rather than unique, and the existing preservation order requiring mortgage payments to be paid into court provided sufficient protection without encumbering the third party's title.

The Plaintiff and other parties sought costs for an aborted continued pretrial, which was rendered unproductive due to the non-attendance of a principal of the Defendants/Plaintiff by Counterclaim and their counsel, without timely notification.

The court found the non-attendance and lack of notice discourteous and a waste of time for counsel and the court.

Citing Rule 50.12 and 57.01 of the Rules of Civil Procedure and Section 131(1) of the Courts of Justice Act, the court ordered the Defendants/Plaintiff by Counterclaim to pay $12,000 in costs on a substantial indemnity basis.

Following the unopposed dismissal of an action claiming $35 million for fraud and conspiracy, the successful defendants and third parties sought their costs.

The court found that the plaintiffs' unsubstantiated allegations of fraud were advanced recklessly, entitling the primary defendants to costs on an elevated scale.

The court awarded the primary defendants $426,055.56 (splitting the difference between partial and substantial indemnity) and awarded the third parties their full claimed partial indemnity costs of $102,980.59.

This decision addresses pre-judgment interest and costs following a trial where the plaintiffs were awarded damages against Legalett Canada Inc. for negligent misrepresentation and breach of collateral warranty, but their claim against Joshua Teixeira was dismissed.

The court awarded the plaintiffs pre-judgment interest and partial indemnity costs from Legalett.

Concurrently, the court awarded partial indemnity costs to Teixeira from the plaintiffs.

The court declined to issue a Sanderson or Bullock order, finding it was reasonable for the plaintiffs to sue Teixeira personally and that the defendants did not improperly shift responsibility onto each other.

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action for indemnity under a share purchase agreement.

The action was based on alleged breaches of a tax representation and warranty.

The defendants argued the action was statute-barred and that the plaintiff's claim for "loss of use of funds" was limited by contract.

The court granted summary judgment, finding the action was statute-barred because the six-year limitation period began when the plaintiff knew the material facts of the breach and the resulting "claim" (Revenue Canada's reassessment), not upon a demand for indemnity or its refusal.

The court also dismissed the claim for loss of use of funds beyond the contractually agreed prime rate.

The applicant filed two human rights applications against the respondent, with the second alleging reprisal for filing the first.

The respondent requested in its response that the applications be consolidated due to overlapping facts and parties.

The applicant did not respond to the request.

The Tribunal found it appropriate to consolidate the applications given the overlap of facts and legal issues, and set deadlines for disclosure and filing of witness statements.

The appellants appealed a summary judgment dismissing their fraud action based on a release, while the respondents' counterclaim on two promissory notes was sent to trial after a mini-trial.

The Court of Appeal allowed the appeal, finding that the motion judge erred in principle by failing to assess the advisability of a staged summary judgment process in the context of the litigation as a whole.

Because the release and the promissory notes were part of the same series of transactions, and credibility was a central issue, both the claim and counterclaim were required to proceed to trial to avoid inconsistent findings and substantive injustice.

The appellant challenged a summary judgment dismissing its claim for alleged breaches of non-competition and non-solicitation obligations by former employees and a competing entity.

The Court of Appeal held that the evidentiary record advanced by the appellant consisted of bald allegations and a small number of suspicious incidents that were fully explained by the respondents.

Because the appellant did not cross-examine or otherwise meaningfully challenge those explanations, there were no genuine issues requiring a trial.

The court held the full appreciation test was satisfied without a trial and dismissed the appeal, with fixed costs to the respondents.

The defendants moved for summary judgment dismissing a multi-million dollar action and seeking judgment on two promissory notes totalling $1.25 million.

The court held that a broadly worded release executed in November 2009 barred most of the plaintiffs’ claims, particularly in light of admissions that the parties had a “clean slate.” However, the enforceability of the two promissory notes raised genuine issues requiring a trial because the surrounding documentation was inconsistent and some documents were admittedly fabricated.

After conducting a mini‑trial under Rule 20.04(2.2), the court concluded that a full appreciation of the evidence regarding the promissory notes could not be achieved on a summary judgment record.

Most of the plaintiffs’ action was dismissed, but the counterclaim relating to the promissory notes was directed to trial.

Following a successful motion by certain defendants to enforce a settlement agreement, the court determined the appropriate costs award.

The moving defendants sought full indemnity costs, arguing that the plaintiffs’ conduct throughout the proceeding justified such an award.

The court held that the plaintiffs acted unreasonably in refusing to acknowledge a binding settlement even after obtaining legal advice, which unnecessarily required the motion.

Considering the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court ordered substantial indemnity costs rather than full indemnity.

Costs of $15,000 were awarded to the successful moving defendants.