Harvey Klein

This endorsement determines costs following a trial involving two consolidated insurance claims: a Wall Collapse Claim and a Fire Loss Claim.

The plaintiffs (Lalani) succeeded on the Fire Loss Claim against Intact Insurance, being awarded substantial damages, while their Wall Collapse Claim was dismissed.

A negligence claim against the Broker (D.M. Edwards and CG&B) related to the Fire Loss Claim was also dismissed.

The court allocated costs 70% to the Fire Loss Claim and 30% to the Wall Collapse Claim.

Lalani was awarded partial and substantial indemnity costs against Intact for the Fire Loss Claim.

No costs were awarded for the dismissed claim against the Broker due to their adversarial position and the nature of their offer to settle.

Intact was awarded partial and substantial indemnity costs against Lalani for the dismissed Wall Collapse Claim, based on a public policy objective of promoting settlements.

The plaintiffs sought coverage under their commercial property insurance policies for a wall collapse and a subsequent arson fire that destroyed their heritage building.

The insurer denied coverage for both claims, relying on wear and tear exclusions for the wall collapse and a vacancy exclusion for the fire.

The court dismissed the wall collapse claim, finding the plaintiffs failed to prove it was caused by a fortuitous event.

However, the court granted the fire loss claim, holding that the insurer's unilateral amendments to the policy were void under s. 124 of the Insurance Act and that the insurer was estopped from relying on the vacancy exclusion because it renewed the policy and accepted increased premiums with full knowledge that the building was vacant.

The plaintiffs were awarded over $5.8 million in damages.

A concurrent negligence claim against the plaintiffs' insurance brokers was dismissed.

The appellant, Kossay El-Khodr, appealed an application judge's order to release $385,000 from a trust to Northbridge Commercial Insurance Company.

The funds were held pending the outcome of a previous appeal (the "Assignment Appeal") concerning the assignment of statutory accident benefits (SABs) for future medical and rehabilitation expenses.

The appellant argued that the conditions for release in the Minutes of Settlement were not fully met because the Assignment Appeal did not grant an assignment of *all* medical and rehabilitation benefits.

The Court of Appeal dismissed the appeal, finding that the application judge correctly interpreted the Minutes of Settlement in the context of the Assignment Appeal, which had assigned the specific categories of benefits at issue, thereby satisfying the conditions for the release of funds to the respondent and preventing double recovery.

The plaintiffs brought a motion to strike the jury notice in a motor vehicle accident action to avoid further delay caused by the COVID-19 pandemic.

The action had been set down for trial in 2018 and faced significant delays.

The court adopted a conditional approach, ordering that the matter remain on the upcoming trial list and proceed as a judge-alone trial if reached while jury trials were unavailable.

If not reached, it would be rescheduled and proceed with a jury only if the court could accommodate one at that time.

Following the dismissal of the applicant's application, the successful respondent sought costs.

The respondent requested costs of $13,612.53, which was approximately twice the amount it had set out in its Form 57B costs outline delivered prior to the decision.

The court held that a party cannot seek costs exceeding the amount in its costs outline, as doing so would undermine the purpose of the rule requiring parties to commit to their costs positions.

The respondent's costs were limited to the amount requested in its costs outline.

The applicant, Kossay El-Khodr, sought the court's interpretation of minutes of settlement signed with Northbridge Commercial Insurance Company and Royal & Sun Alliance Insurance Company of Canada.

The dispute centered on the distribution of $385,000 in settlement funds, contingent on the outcome of a Court of Appeal decision regarding the assignment of statutory accident benefits.

El-Khodr argued that the Court of Appeal's decision, which granted Northbridge an assignment of specific future medical and rehabilitation benefits but not all, did not fully trigger the conditions for payment to Northbridge as per the minutes of settlement, or that the contract was frustrated.

The court applied principles of contractual interpretation, finding that Northbridge was wholly successful on the appeal as it obtained the specific assignments it had sought.

The court dismissed El-Khodr's arguments, concluding that the conditions in the minutes of settlement were met, and ordered the release of the $385,000 to Northbridge.

Following a 34-day jury trial for a fatal motor vehicle accident, the court determined several post-verdict issues.

The jury awarded damages to a minor plaintiff who sustained a traumatic brain injury and to his half-sister, while finding the co-defendants not liable.

The court declined to amend the jury's $55,000 award for post-secondary studies, finding it was not a mere clerical error.

The court exercised its discretion to award prejudgment interest from the date the insurer had actual knowledge of the claim, despite the lack of formal written notice under the Insurance Act.

A management fee of $30,000 was awarded based on the real and substantial possibility that the minor plaintiff would be found incapable of managing his property upon turning 18.

On costs, the court declined to give weight to the unsuccessful defendant's non-compliant global settlement offer because it failed to allocate amounts among the separately represented plaintiffs.

The unsuccessful defendant was ordered to pay the plaintiffs' partial indemnity costs and the successful defendants' costs up to the date it admitted liability via a Sanderson order.

This action arose from a motor vehicle accident.

The primary issue at trial was whether the vehicle owner, Crystal Vincent, had given implied consent to Riley Sabourin, an unlicensed driver, to possess her vehicle at the time of the accident.

The court considered the long-term relationship between the defendants, Ms. Vincent's knowledge of Mr. Sabourin's past unauthorized driving, her failure to secure keys, and her general admonishments rather than explicit prohibitions.

The court found that Ms. Vincent failed to discharge her onus to prove lack of implied consent, concluding that Mr. Sabourin was justified in deeming he had implied consent.

The appellants appealed a trial judgment dismissing their negligence action arising from an injury sustained at a municipal winter festival.

The plaintiff was injured when she struck a piece of hardened ice protruding from a snow slide at the City of Barrie's Winterfest event.

The trial judge found that while the injury was caused by the ice, the municipality had not breached the standard of care in maintaining the slide.

The appellants raised three grounds of appeal challenging the characterization of the ice as "small," the trial judge's inference from hearsay evidence, and the standard of care analysis.

The Court of Appeal upheld the trial judgment on all grounds, finding no palpable and overriding error.

The plaintiff injured her tailbone after hitting a hidden chunk of ice while sliding down a snow slide at a winter festival operated by the defendants.

She brought an action under the Occupiers' Liability Act, alleging the defendants failed to take reasonable steps to ensure the slide was safe.

The court dismissed the action, finding that the defendants met the standard of care by having staff monitor the slide, direct traffic, and fill in gaps in the snow.

The court held that requiring the defendants to detect and remove a small, buried piece of ice would impose a standard of perfection rather than reasonableness.