Gordon McGuire

The Court of Appeal for Ontario dismissed the appeal of Vahid Mehdizadeh Asiyaban and 2468692 Ontario Ltd. against Halime Khatoun Aghdasi.

The trial judge had found that the appellant falsified evidence and solicited false testimony in support of a property claim in family litigation.

The Court held that the trial judge was entitled to reject the appellant’s uncorroborated evidence and found no basis to interfere with the credibility findings.

The appeal was dismissed in its entirety, and the appellant was ordered to pay costs to the respondent.

Oscar Furtado appealed a decision denying him Directors and Officers insurance coverage and relief from forfeiture.

The Ontario Securities Commission (OSC) initiated an investigation against Furtado's real estate development business, Go-To, during the policy period.

While a confidentiality order initially prevented disclosure to the insurer, the law changed in December 2019 to permit such disclosure.

Furtado was explicitly notified of this change in February 2021 but did not report the investigation to Lloyd's Underwriters until February/March 2022, after the OSC commenced formal proceedings.

The Court of Appeal upheld the application judge's finding that Furtado's failure to report the investigation once legally permitted constituted non-compliance with a condition precedent to coverage, rather than imperfect compliance.

Consequently, relief from forfeiture was unavailable, as granting it would extend coverage beyond the bargained-for terms of the claims-made and reported policy.

The appeal was dismissed.

The applicant insurer sought judicial review of an appraisal award determining the replacement cost and actual cash value of dental equipment damaged in a fire.

The insurer argued the appraisal panel exceeded its jurisdiction by deciding the equipment needed replacement rather than cleaning, which it characterized as a coverage issue.

The Divisional Court dismissed the application, finding the panel properly confined itself to valuation issues under Statutory Condition 11.

The court also rejected the insurer's arguments that it was denied procedural fairness during the appraisal process.

The applicant sought relief from forfeiture for late notice of a claim under a Directors and Officers' Liability Policy, arguing imperfect compliance.

The respondent denied coverage, asserting non-compliance with a condition precedent.

The court found the applicant's delay in notifying the insurer, after the Securities Act amendment permitted disclosure, constituted a substantial breach and caused prejudice to the insurer in a claims-made policy.

Consequently, relief from forfeiture was not available, and the application was dismissed.

The applicants purchased a property and subsequently received a municipal order to remediate unpermitted structures.

They made a claim under their title insurance policy.

The insurer invoked the policy's appraisal process, instructing the appraiser to calculate the 'Actual Loss' by valuing the land as if the unpermitted structures did not exist.

The applicants challenged this interpretation and the policy's appraisal process.

The court held that 'Actual Loss' must be calculated based on the value of the property subject to the government order, not as vacant land.

Furthermore, the court ruled that the appraisal process mandated by section 128 of the Insurance Act overrides the inconsistent process set out in the insurance policy.

The applicant sought a declaration that its insurer had a duty to defend it in an underlying lawsuit.

The insurer argued that coverage was excluded under Exclusion 20 of the claims-made policy, which excluded claims of which the insured was aware as of the 'inception date of this Policy'.

The court found the phrase 'inception date' to be hopelessly ambiguous, as it could refer to either the initial policy issuance date or the most recent renewal date.

Applying the principles of contract interpretation, the court construed the ambiguous exclusion clause against the insurer and granted the application, ordering the insurer to provide a defence.

The applicant church suffered a fire loss and submitted a claim to its insurer.

The insurer obtained quotes for repair, and the applicant hired a quantity surveyor to critique the insurer's scope of work.

The insurer refused to cover the surveyor's fees, arguing the policy only covered professionals 'required by the Insurer'.

The court found the policy language ambiguous and applied general rules of contract construction.

The court held that the policy covered professional fees incurred by the insured to obtain particulars of the loss, as those particulars were required by the insurer.

The application was allowed and the insurer was ordered to pay the surveyor's fees.

This application concerned the interpretation of a commercial lease following a fire at the leased premises, a bar and restaurant.

The applicant tenant sought a declaration that the respondent landlord was responsible for repairing fire and water damage to the walls, ceilings, and flooring, and for abating rent until repairs were complete, pursuant to Article 9.03 of the lease.

The landlord argued the damage was minor, its repair obligations were limited, and the tenant's subsequent conduct supported its interpretation.

The court found that the premises were "not fit for occupancy" or "unsafe to use or occupy" due to accelerant odour, inoperative sprinklers, and fire/water damage, triggering Article 9.03.

The court rejected the landlord's narrow interpretation of its repair obligations and its estoppel by convention argument, declaring the landlord responsible for full repairs to a comparable pre-fire state and rent abatement until completion.

The plaintiff brought a motion to compel the defendants to attend mediation, while the defendants brought a cross-motion to dismiss or stay the action due to the plaintiff's failure to pay a prior costs order of $24,805.22.

The court considered the mandatory mediation provisions under Rule 24.1 of the Rules of Civil Procedure and the discretion to dismiss or stay an action for unpaid costs under Rules 57.03(2) and 60.12.

Balancing the competing interests, including the plaintiff's access to justice, her alleged impecuniosity, the defendants' concession that some monies were owed to the plaintiff, and the ex-husband's (also a defendant) outstanding costs in a related family law proceeding, the court ordered the action to continue for the sole purpose of compelling the parties to attend mediation.

The issue of all outstanding costs was directed to be addressed at mediation, and the decision on the defendants' cross-motion was deferred until after mediation, if unsuccessful.

The moving party sought to review and set aside an order of a single judge of the Divisional Court refusing to extend the time to deliver a notice of appeal.

The underlying action was a defamation claim regarding a negative book review, which was dismissed by a jury.

The moving party delayed over two years before seeking to appeal.

The panel found that the single judge applied the correct legal test, made findings available on the evidence, and properly exercised her discretion in concluding that the justice of the case did not require an extension.

The motion was dismissed.

The moving party sought an extension of time to file a Notice of Appeal in the Divisional Court regarding a judgment dismissing his defamation action following a jury verdict, and a subsequent costs order.

The court applied the test for extending time, finding that while the moving party had a bona fide intention to appeal, his explanation for the nearly two-year delay was unsatisfactory.

Furthermore, the court found that the proposed appeal lacked merit given the high threshold for setting aside a jury verdict.

The motion for an extension of time was dismissed.

The appellants appealed a motion judge's damages assessment following a failed real estate transaction.

The motion judge awarded DHMK Properties Inc. damages based on the difference between the agreed purchase price ($5.3 million) and the property's market value in August 2014 ($4.27 million), without accounting for the vendor's warranty obligations regarding net income or providing reasons for the valuation date selection.

The Court of Appeal found two critical errors: the failure to consider the effect of the vendor's warranty on damages calculation, and the unexplained selection of August 2014 as the valuation date rather than the scheduled closing date.

The court set aside the judgment and remitted the damages assessment to the Superior Court.

The applicant sought to review an order of a chambers judge dismissing his motion to extend the time to appeal three judgments: a default judgment against one defendant, a judgment dismissing his action against two institutional defendants arising from a jury verdict, and a costs award.

The Court of Appeal upheld the chambers judge's discretionary decision to deny the extension of time for the default judgment, finding no grounds of appeal were articulated and finality concerns favored denial.

The Court also confirmed that the appeal of the judgment dismissing the action and the incidental costs award lay to the Divisional Court based on the quantum of the jury's assessment of damages.

The defendant in a defamation action brought a motion seeking an order for the plaintiffs to provide particulars of their statement of claim and to produce documents for inspection under Rule 30.04 of the Rules of Civil Procedure.

The court partially granted the motion for particulars, ordering the plaintiffs to provide specific details regarding alleged defamatory comments and special damages.

However, the court dismissed the request to inspect documents, finding that the court has discretion to limit such requests based on relevance and proportionality, and that the requested documents were either already in the defendant's possession, publicly available, or not specific documents within the meaning of the rule.

This is a costs endorsement following an appeal decision dated June 30, 2017.

The appellants (Iranian government entities) appealed orders from the Superior Court of Justice.

The Court of Appeal dismissed most appeals but allowed appeals in actions commenced by certain respondents, striking those actions.

The court awarded costs to the respondents on a partial indemnity basis, rejecting the appellants' argument that no costs should be awarded due to novel issues and declining to award substantial indemnity costs or costs to respondents whose actions were struck.

The plaintiff sued an accounting firm and a lawyer for professional negligence relating to the preparation and implementation of a family trust for tax planning purposes.

The defendants and a third-party lawyer brought motions for summary judgment to dismiss the claims.

The court found no genuine issue requiring a trial, concluding that neither the lawyer nor the accounting firm were retained to form the trust or prepare the trust deed.

The court granted summary judgment and dismissed the plaintiff's claims, which consequently dismissed the third-party claims for contribution and indemnity.

Liberty Silver Corporation sought indemnification from Liberty Insurance Underwriters Inc. for legal costs incurred by its officers and directors during an investigation by the United States Securities and Exchange Commission (SEC) and the Ontario Securities Commission (OSC).

Liberty Insurance denied coverage, arguing the investigative order and subpoenas did not constitute a "Claim" against an "Insured Person" for a "Wrongful Act" and that Liberty Silver was no longer "legally obligated to pay" due to an assignment agreement.

The court found the investigative order was a "formal regulatory investigation" and thus a "Claim" and that a holistic interpretation of the policy meant "Wrongful Act" included matters giving rise to such an investigation.

The court also rejected arguments regarding the assignment agreement and statute of limitations.

The application for indemnification was allowed, and Liberty Silver's proposed allocation of defence costs was accepted.

The appellants (Iran and related entities) appealed orders of the Superior Court of Justice recognizing and enforcing U.S. judgments obtained by victims of terrorism against Iran for its sponsorship of terrorist attacks.

The respondents sought to enforce these judgments in Ontario under the Justice for Victims of Terrorism Act (JVTA) and amendments to the State Immunity Act (SIA).

Iran challenged the recognition and enforcement of the judgments on multiple grounds, including arguments regarding state immunity, the temporal scope of the JVTA, proof requirements, limitation periods, jurisdiction, public policy, diplomatic immunity, and the appropriateness of costs awards.

The Court of Appeal dismissed Iran's appeal, save for judgments arising from terrorist attacks that occurred prior to January 1, 1985, which could not be enforced under the JVTA.

Following the dismissal of Iran's motions to set aside default judgments and a Mareva injunction, the plaintiffs sought costs.

Iran argued it was immune from costs orders under the State Immunity Act and the Justice for Victims of Terrorism Act.

The court held that Iran was not immune from costs and awarded the plaintiffs costs on a partial indemnity basis, finding the claimed amounts reasonable given the complexity and high stakes of the proceedings.

Following a successful appeal of a Master's order regarding a certificate of pending litigation, the appellants sought substantial indemnity costs based on an ex parte non-disclosure and settlement offers.

The court declined substantial indemnity but awarded partial indemnity costs with a premium for a bona fide settlement offer made prior to the hearing.

Costs were fixed at $24,805.22 inclusive of the motion below and the appeal.