Gordon McGuire

This is an appeal from a Master's decision concerning an ex parte certificate of pending litigation.

The Superior Court found that the plaintiff failed to make full and fair disclosure of material facts when obtaining the certificate, misstating the nature and purpose of underlying agreements related to an interest in land.

The Master also erred in ordering all proceeds of sale into court, exceeding the plaintiff's claimed interest.

The appeal was allowed, the Master's order set aside, and the certificate of pending litigation discharged.

The appellant, a secondary insurer, paid for a claimant's expensive prescription drug after the respondent, the primary insurer, denied coverage.

The appellant later sued the respondent for reimbursement.

The motion judge found the appellant's claim was partially statute-barred because it was discovered when the appellant first learned of the denial in October 2009.

The Court of Appeal reversed, holding that the appellant could not have reasonably discovered its claim until the respondent finally produced the policy wording in September 2011.

The appeal was allowed and the respondent was ordered to fully reimburse the appellant.

The defendants, Susan and George Needles, brought a motion to vacate a certificate of pending litigation (CPL) obtained ex-parte by the plaintiff, Nisha Adams, regarding a property they owned where Nisha and her family had lived.

The plaintiff agreed to discharge the CPL but requested terms regarding the sale proceeds.

The defendants argued the CPL should be vacated without terms due to alleged material non-disclosure by the plaintiff on the ex-parte motion.

The Master found that the plaintiff did not fail to make full and frank disclosure of material facts and that she had a reasonable claim to an interest in the land based on mortgage payments and renovations.

The Master ordered the CPL discharged on the condition that the net proceeds of any sale be paid into court.

The applicant moved to disqualify a law firm from representing the respondent receiver in a funds dispute, alleging a conflict of interest.

The law firm brought a cross-motion to be removed as the applicant's counsel in other ongoing litigation.

The court found that the retainer agreement between the applicant and the law firm explicitly contemplated this scenario and permitted the law firm to continue representing the receiver if a dispute arose.

Applying the Supreme Court of Canada's jurisprudence on the bright line rule, the court held that the applicant's expectation of exclusive loyalty was unreasonable given the terms of the retainer.

The applicant's motion was dismissed, and the law firm's cross-motion was granted.

The plaintiffs purchased a plaster sculpture attributed to Auguste Rodin and loaned it to the defendant art gallery to obtain a charitable tax credit.

The authenticity of the sculpture was subsequently challenged by the Musée Rodin, causing the tax certification to fail.

The defendant terminated the loan agreement and requested the plaintiffs arrange for the sculpture's return.

When the plaintiffs failed to do so, the defendant shipped the sculpture to a storage facility, during which it sustained severe damage.

The plaintiffs sued for damages, and the defendant counterclaimed for storage fees.

The court found that the loan agreement had terminated and the defendant was acting as an involuntary bailee.

As an involuntary bailee, the defendant's duty was only to refrain from intentional or reckless damage.

The court held the defendant met this standard by using the original packing crate, especially given the sculpture's lack of proven authenticity and value.

The plaintiffs' claim was dismissed, and the defendant's counterclaim for storage fees was granted.

Following earlier rulings quashing garnishment notices issued against diplomatic bank accounts of a foreign state, the court determined the appropriate costs award.

The proceedings involved complex and novel issues of diplomatic immunity, state immunity, and international law relating to enforcement of a judgment against a foreign state.

Although the foreign state was the successful party, the court declined to award substantial indemnity costs due to the absence of improper litigation conduct and the novelty of the issues.

A third‑party bank that participated extensively in the litigation was found not to be a necessary party and was denied costs.

The creditor was ordered to pay the foreign state partial indemnity costs fixed at $100,000 inclusive of disbursements and HST.

The plaintiff insurer sought summary judgment against the defendant insurer for equitable contribution and unjust enrichment regarding the costs of a life-saving drug, Soliris, paid on behalf of a mutual insured.

The defendant had initially denied coverage improperly.

The court found that the defendant was unjustly enriched and obligated to pay 90% of the drug costs as the primary insurer.

However, the court held that the plaintiff discovered the claim in October 2009, meaning claims for payments made more than two years before the action was commenced on April 4, 2012, were statute-barred.

Applying the principle that a new cause of action arises with each monthly payment, the court ordered the defendant to reimburse the plaintiff for all payments made after April 4, 2010.

The appellant insurer appealed a trial judge's decision regarding the calculation of interest on retroactive attendant care benefits under the Statutory Accident Benefits Schedule.

The trial judge had ordered interest to run from the date the benefits were incurred, relying on previous case law.

The Divisional Court allowed the appeal, holding that under sections 39 and 46 of the SABS, a payment is not overdue, and interest does not begin to run, until 10 business days have elapsed after the insurer receives a Form 1 assessment of attendant care needs.

Following an order by the Court of Appeal awarding the plaintiffs their costs of a summary judgment motion, the parties were unable to agree on the quantum.

The plaintiffs sought $50,000 in fees and $3,236.40 in disbursements, while the defendant argued for costs in the cause or a reduced amount.

Applying the principles of fairness, reasonableness, and proportionality, the court fixed the plaintiffs' costs of the summary judgment motion at $53,236.40 on a partial indemnity scale.

The court also awarded the plaintiffs $10,000 for a successful Rule 34.14 motion, with all costs payable in any event of the cause.

In this personal injury action arising from a motor vehicle accident, the moving defendant sought leave after the action had been set down for trial to bring a motion compelling the plaintiff to attend a defence psychiatric examination shortly before a scheduled jury trial.

The court held the defendant knew or ought to have known for years that serious psychological impairment was being advanced and that the recent report did not amount to a substantial or unexpected change in circumstances.

The court found the late request risked imperilling the long-scheduled trial and would unfairly prejudice the plaintiff, while any prejudice to the defendant was self-induced.

Leave and the requested examination order were refused.

The plaintiff brought a motion seeking an order compelling the defendant insurance broker to enter into and comply with a discovery plan under Rule 29.1 of the Rules of Civil Procedure.

The defendant agreed in principle but sought to delay examinations for discovery pending the determination of its motion to stay the action until the resolution of related insurance coverage litigation.

The court held that the balance of prejudice favoured proceeding with discovery, noting the plaintiff’s substantial financial loss and the risk of indefinite delay if discovery were postponed pending the stay motion and possible appeals.

While declining to prejudge the merits of the proposed stay motion, the court concluded that the action should continue to move forward.

A discovery plan was imposed with deadlines for affidavits of documents and examinations for discovery.

The defendant vehicle owner brought a motion for summary judgment dismissing a personal injury action arising from a truck accident, arguing that the Workplace Safety and Insurance Act barred the claim because the negligent driver was a protected worker.

The Workplace Safety and Insurance Appeals Tribunal had previously barred claims against the driver and employer but permitted a limited action against the vehicle owner.

The court considered whether s. 29 of the Workplace Safety and Insurance Act precluded a statutory vicarious liability claim against the owner under s. 192 of the Highway Traffic Act.

The court held that the workers’ compensation regime eliminates joint liability with protected defendants but does not abolish statutory vicarious liability claims against unprotected vehicle owners.

Because the statute did not clearly remove such liability, the claim against the owner could proceed.

The plaintiff sought leave to appeal an order granting multiple defendants security for costs in underlying litigation.

The motion relied on Rule 62.02(4)(b) of the Rules of Civil Procedure and argued that the order would deny access to justice because the plaintiff corporation was impecunious.

The court found the plaintiff failed to demonstrate credible impecuniosity, noting financial records did not account for more than $2 million previously received from expropriation compensation and land sales.

The court held there was no good reason to doubt the correctness of the security for costs order and the proposed appeal did not raise issues of general importance.

Leave to appeal was therefore refused.

Following motions for leave to intervene in two related insurance actions, the intervenor successfully obtained party status as a defendant.

The court considered the appropriate costs award arising from the intervention motions.

The judge found that the plaintiff’s litigation conduct—including unnecessary opposition, procedural delays, and additional cross-examinations—significantly increased the intervenor’s costs.

While the conduct did not rise to the level warranting elevated costs, partial indemnity costs were appropriate.

The court fixed costs globally for both actions and ordered the plaintiff to pay the intervenor’s costs.

Family members of a deceased life insured sought leave to intervene as parties in actions brought by the named beneficiary against two insurers for payment of life insurance proceeds.

The beneficiary had been charged with the murder of the insured, raising the public policy rule that a person cannot profit from their own wrongdoing.

The proposed intervenor, the deceased’s mother, argued she had a direct financial interest because the proceeds could fall to the estate and pass to her under intestacy if the beneficiary were disqualified.

The court held that the mother met the test under Rule 13.01 of the Rules of Civil Procedure as she asserted a reasonable interest in the subject matter and would be adversely affected by a judgment.

Leave to intervene was granted to the mother but denied to the sister, and the insurers were permitted to pay the proceeds into court pending the outcome of the criminal proceedings.

The appellants appealed a jury's damages assessment arising from a motor vehicle accident.

The jury awarded $40,000 in general damages (reduced to $10,000 after a statutory deduction) and zero dollars for other claims, despite the appellants claiming over $50,000.

The Court of Appeal held it lacked jurisdiction, as section 19(1.2) of the Courts of Justice Act directs appeals to the Divisional Court when the amount ordered to be paid, or the amount assessed for a dismissed claim, is under $50,000.

The appeal was transferred to the Divisional Court.

Following a jury trial arising from a motor vehicle accident, the court determined the appropriate costs consequences where the plaintiffs obtained a judgment significantly less favourable than the defendant’s Rule 49 offer to settle.

The plaintiffs recovered limited damages after the statutory deductible reduced the award.

The court considered whether Rule 76 simplified procedure should have been used and concluded it was reasonable for the plaintiffs to proceed under the ordinary procedure due to the complexity of the case and expert evidence.

Applying Rule 49.10(2), the plaintiffs were awarded partial indemnity costs up to the date of the defendant’s offer, and the defendant was awarded partial indemnity costs thereafter.

Substantial indemnity costs were refused because there was no reprehensible conduct.