Glenn A. Smith

The plaintiffs in a class action sought court approval for a settlement agreement with certain defendants, class counsel fees and disbursements, and honorariums for the representative plaintiffs.

The settlement amount was $37 million.

The court approved the settlement, finding it fair and reasonable given the litigation risks, including dissolved corporate entities and limitations issues.

The court also approved the 30% contingency fee for class counsel and $50,000 honorariums for each representative plaintiff, recognizing their exceptional involvement and exposure to costs.

The moving party sought to set aside an administrative dismissal of his appeal for delay.

The appeal arose from a motion to change child and spousal support in a long-running family law matter.

The motion judge had dismissed the motion to change due to the moving party's failure to produce required financial disclosure and lack of demonstrated material change in circumstances.

The moving party failed to perfect his appeal within the prescribed time and the appeal was administratively dismissed.

The court dismissed the motion to set aside, finding weak grounds of appeal, inadequate explanation for failure to perfect, unjustified delay in bringing the motion, and prejudice to the respondent.

The plaintiff moved mid-trial for leave to amend a statement of claim arising from a disputed life insurance policy allegedly designed to provide inflation protection.

The court held that, although the timing of the motion did not create non-compensable prejudice, most proposed amendments were legally untenable.

Allegations that the insurer breached a duty of good faith by failing to disclose an alleged policy error before any claim was made, by failing to disclose documents at the application stage, and by advancing a full merits defence could not sustain independent causes of action.

Leave was granted only for unopposed amendments, and the request to increase punitive damages from $1,000,000 to $5,000,000 was denied.

The tenant brought an urgent motion seeking relief from forfeiture after the landlord terminated a commercial lease and re-entered the premises due to substantial rent arrears.

The tenant had ceased paying rent for several months and significant arrears had accumulated, though the tenant alleged the premises had serious deficiencies and that the parties had been engaged in ongoing lease renegotiations.

The court applied the equitable principles governing relief from forfeiture under the Commercial Tenancies Act and Courts of Justice Act, considering the tenant’s conduct, the gravity of the breach, and the surrounding circumstances.

Although the tenant’s failure to pay rent weighed against relief, the court granted interim relief from forfeiture on strict terms requiring substantial payment of rent arrears and ongoing compliance with the lease.

The matter was adjourned for further determination on whether the relief should continue on an interlocutory basis pending trial.

The appellant insurer appealed a trial judgment awarding the respondent insureds US$15 million under a directors' and officers' liability policy for defence costs incurred in a US action.

The trial judge had been directed by the Court of Appeal to hear extrinsic evidence to resolve an ambiguity in a specific entity subsidiary exclusion endorsement.

The Court of Appeal upheld the trial judge's finding that the extrinsic evidence demonstrated the parties mutually intended for the policy to cover the executives for wrongful acts committed in their capacity as executives of the parent company.

The Court also upheld the finding that the insurer was not entitled to set off the amounts owing against payments made under a separate run-off policy.

The plaintiffs sought indemnity under an executive liability insurance policy for losses arising from litigation alleging wrongful acts connected to a corporate subsidiary.

The insurer argued that a specific entity exclusion and coordination-of-limits endorsement limited or eliminated coverage and that payments under a separate run‑off policy should be set off against the policy limits.

The court examined the surrounding negotiations and the wording of the policies, including the meaning of the term “claim,” and found the exclusion did not remove coverage for directors acting in their capacity as directors of the parent corporation.

The court also held that the coordination-of-limits endorsement was not triggered because the two policies covered different wrongful acts committed in different capacities.

Judgment was granted for the plaintiffs for the full policy limits.

The appellant, a primary insurer, sought a declaration that the respondent, an excess insurer, had a duty to contribute to defence costs incurred on behalf of their common insured.

The primary policy contained a duty to defend, while the excess policy did not and stipulated that defence costs eroded its policy limit.

The Court of Appeal dismissed the appeal, holding that the doctrine of equitable contribution did not apply because the primary and excess policies did not cover the same risk.

The primary insurer was held to its bargain with the insured, and the excess insurer was not required to contribute to defence costs.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and cross-appeal.

The appellant was awarded costs of the appeal on a partial indemnity scale fixed at $45,000.

The appellant and other responding insurers were awarded additional costs fixed at $20,000.

The appellant insurer appealed a summary judgment ordering it to pay US$15 million for defence costs under a directors' and officers' liability policy.

The dispute centered on whether an exclusion clause (Endorsement #14) unambiguously excluded coverage for claims against the insured's directors and officers acting in their capacity as executives of a bankrupt former subsidiary.

The Court of Appeal found the exclusion clause ambiguous, as it could reasonably be interpreted to either exclude or preserve coverage depending on the capacity in which the executives were sued.

Because the factual matrix did not resolve the ambiguity and the motion judge had not made findings regarding the parties' reasonable expectations, the Court of Appeal allowed the appeal, set aside the summary judgment, and returned the matter to the Superior Court for trial.

The appellants appealed a trial judge's decision rejecting their claim against the respondent regarding an alleged representation about the location and configuration of basketball seats purchased under a licence.

The Court of Appeal found no error in the trial judge's findings that the licence contained no such representations and that no oral representations were made.

The appeal was dismissed with costs awarded to the respondent.

The defendants brought motions for summary judgment to dismiss the plaintiff's putative class action regarding a leveraged charitable donation program, arguing the claim was statute-barred.

The plaintiff alleged he relied on the defendants' tax opinions to participate in the program, which the CRA later disallowed.

The court dismissed the motions, finding a genuine issue for trial regarding when the plaintiff discovered his claim, particularly given the ongoing solicitor-client relationship with the defendant law firm that was representing him against the CRA while potentially in a conflict of interest.

The appellants appealed a summary judgment dismissing their action against the respondent insurer for breach of the duty of good faith.

The motion judge had found the action was barred by the one-year limitation period in the standard automobile policy.

The Court of Appeal allowed the appeal, holding that the cause of action did not arise until the insured's liability was finally ascertained by judgment.

Furthermore, the court held that a claim for breach of the independent duty of good faith is not a claim under the insurance contract, and is therefore subject to the general six-year limitation period rather than the one-year statutory condition.

The moving parties sought court approval of a proposed settlement in a certified class proceeding relating to a leveraged charitable donation tax shelter.

Participants had claimed inflated charitable tax credits based on loans and security deposits connected to the program, which were later disallowed by the Canada Revenue Agency.

The settlement provided for an $11 million payment by a defendant law firm alleged to have issued legal opinions supporting the program’s legality, with funds distributed to class members and covering counsel fees and administration.

The court applied established factors governing settlement approval in class proceedings and found the agreement fair, reasonable, and in the best interests of the class given significant litigation risks.

The court also approved class counsel fees but declined to award additional compensation to the representative plaintiffs, finding their contribution commendable but not exceptional.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The court reviewed the parties' written submissions and largely agreed with the appellant's position, finding it fair and reasonable.

The court slightly increased the award to the main respondent to reflect its greater participation.

Costs were awarded to the respondents on a partial indemnity basis, totaling $30,000.

The appellant insurer appealed a decision finding it had a duty to indemnify the respondent insured under a commercial general liability policy for damages arising from defective concrete.

The insurer relied on the 'Your Work' and 'Rip and Tear' exclusions.

The Court of Appeal dismissed the appeal, holding that the 'Your Work' exclusion was ousted by the 'subcontractor' exception because the entity that supplied the defective concrete was properly characterized as a subcontractor.

The Court also found the 'Rip and Tear' exclusion incomprehensible and therefore inapplicable.

The appellants appealed the dismissal of their motion to stay proceedings based on a forum selection clause designating British Columbia for arbitration.

The Court of Appeal found that the motion judge erred by failing to apply the 'strong cause' test from Pompey v. Ecu-Line N.V. However, exercising its own discretion under s. 106 of the Courts of Justice Act, the Court dismissed the appeal.

The Court held that due to the appellants' two-year delay in bringing the motion and the significant steps already taken in the Ontario litigation, it would be unjust to require the respondent to start afresh in British Columbia.

The appellants appealed a motion judge's decision striking their statement of claim against the respondents, who were patent agents for the appellants' competitors.

The Court of Appeal upheld the motion judge's finding that the statement of claim disclosed no viable causes of action.

The court found no fiduciary duty or duty of care owed by the respondents to the appellants, no basis for a constructive trust, no pleaded conspiracy, no conversion, and no statutory cause of action for false statement since the respondents were not competitors.

The appeal was dismissed with costs.

The appellant insurer issued a comprehensive general liability policy to the respondent insured.

The insured was sued for wrongful dismissal, including allegations of intentional racial and age discrimination.

The insurer sought a declaration that it owed no duty to defend the discrimination claims.

The application judge ruled the insurer was required to provide a defence.

On appeal, the Court of Appeal allowed the appeal, holding that the fortuity principle of insurance law dictates that liability policies only cover accidental or fortuitous losses.

Because the underlying claims alleged intentional discrimination, they fell outside the scope of the policy, and the insurer had no duty to defend.

The appellant, Lafarge Canada Inc., sought a Bullock order regarding costs.

The Court of Appeal declined to make the order, noting that the appellant should have known the inclusion of the successful insurers as respondents on the appeal was unnecessary, as evidenced by the appellant abandoning the appeal against most of them at the end of oral argument.

The Court requested further submissions on whether the successful insurers should receive partial or substantial indemnity costs and whether costs should be fixed or assessed.

The plaintiffs, homeowners, sued Bertrand and Lafarge for damages resulting from defective concrete foundations caused by fly ash supplied by Lafarge.

The trial judge found Lafarge 80% liable and Bertrand 20% liable for approximately $20,000,000 in damages.

This appeal concerns the insurance coverage disputes between Bertrand, Lafarge, and their numerous primary and excess insurers.

The Court of Appeal upheld the trial judge's findings that the defective foundations constituted property damage under the CGL policies, that the continuous trigger theory applied to trigger all policies from 1986 to 1992, and that certain excess insurers had a duty to contribute to defence and third-party costs.

The appeal by Guardian Insurance was allowed regarding its duty to defend, but all other appeals and cross-appeals were dismissed.