Hillel David

The self-represented appellant appealed a jury verdict awarding him $3,000 for pain and suffering following a motor vehicle accident.

He argued the trial judge erred in instructing the jury on temporal causation, deprived him of a fair trial, and erred by failing to determine the statutory threshold impairment issue.

The Divisional Court dismissed the appeal, finding the jury charge was appropriate and the damages award was supported by evidence.

Although the trial judge erred in law by refusing to decide the threshold issue on the basis of mootness, the court found no substantial wrong or miscarriage of justice occurred to warrant a new trial.

The appellant appealed the trial judge's dismissal of two actions: one against the City of Toronto for a slip and fall on a sidewalk, and another against the TTC for a transit injury.

The appellant alleged numerous errors, primarily challenging the trial judge's factual and credibility findings.

The Divisional Court dismissed the appeals, holding that the trial judge's adverse credibility findings against the appellant were entitled to deference and contained no palpable and overriding errors.

The court also upheld the trial judge's finding that the City was not grossly negligent and that the thin-skull principle did not apply because causation was not established.

The applicant property manager sought a declaration that the respondent insurer had a duty to defend it in an underlying slip-and-fall action.

The applicant was an additional insured on a commercial general liability policy obtained by a floor mat supplier.

The court found no duty to defend, as the underlying statement of claim alleged independent negligence against the applicant regarding its property management duties, rather than liability arising solely out of the operations of the floor mat supplier.

The court also held that even if a duty to defend existed, the applicant would not be entitled to appoint independent counsel at the insurer's expense, as there was no reasonable apprehension of a conflict of interest.

The landlord appealed a decision declaring its Notice to Vacate void and granting a permanent injunction restraining it from re-entering the leased premises.

The landlord sought to demolish the building and argued the lease limited the tenant's remedies to damages.

The Court of Appeal dismissed the appeal, finding the limitation clause did not apply to the landlord's arbitrary repudiation and trespass, and upheld the permanent injunction as an appropriate remedy to protect the tenant's property rights.

Following summary judgment dismissing the plaintiff’s claim against all defendants, the court addressed supplementary costs submissions from a defendant who did not participate in the summary judgment motion and from several third parties added to the litigation by defendants.

The court reviewed the discretionary framework for costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

While plaintiffs are generally not liable for costs incurred by third parties, the court noted that such costs may be ordered where the third party proceedings flowed naturally from the plaintiff’s claim.

The court awarded the non‑participating defendant partial indemnity costs and exercised its discretion to award approximately half of the third parties’ requested costs against the plaintiff.

The respondent was injured in a motor vehicle accident when the pickup truck he was a passenger in went through a red light and was struck by a transport truck going through a green light.

The jury found the driver of the pickup 95% liable and the driver of the transport truck 5% liable.

The appellants (the transport truck driver and owners) appealed, arguing the jury verdict was unreasonable, the trial judge misdirected the jury on causation, and there was improper cross-examination.

The Court of Appeal dismissed the appeal, finding evidence supported the jury's conclusion that a reasonably prudent driver should have been aware of the hazard, the jury charge was not in error when read as a whole, and the improper cross-examination was not serious enough to undermine trial fairness.

A receiver appealed from summary judgment dismissing its claim for indemnity under a trustee's errors and omissions policy after obtaining judgment against the insured trustee for breach of trust.

The court held that the insurer was entitled to rely on the dishonest acts exclusion because the trustee deliberately breached the trusts, knowingly exposed the beneficiaries to risk, and misappropriated trust funds for its own benefit.

The court further held that a prior order assigning to the receiver the 'proceeds from insurance coverage' did not assign the insured's separate cause of action for breach of the insurer's duty of good faith.

The receiver also had no direct good faith claim against the insurer, although it could return to the motion judge to seek directions on any other remedy if the insurer had deliberately frustrated the prior order.

The respondents suffered property damage when their rented hot water heater leaked.

They brought a subrogated claim in Small Claims Court and were awarded damages.

The appellant's appeal to the Divisional Court was dismissed.

The Court of Appeal dismissed the appellant's further appeal, relying on the reasons given in the companion case of Szilvasy v. Reliance Home Comfort Limited Partnership, which involved the application of s. 9(2) of the Consumer Protection Act, 2002 to the rental of a hot water heater.

The appellant rented a hot water heater to the respondent.

The heater leaked, causing property damage.

The trial judge found the appellant liable based on an implied warranty of fitness, and the Divisional Court dismissed the appeal.

On further appeal, the Court of Appeal held that section 9(2) of the Consumer Protection Act, 2002 applied retrospectively to the rental agreement, importing the implied warranty of fitness from section 15 of the Sale of Goods Act.

The court found the appellant breached this warranty because the water heater was not reasonably fit for its purpose.

The appeal was dismissed.

The appellant insurers appealed a decision granting the respondent insured carriage and control of an action against a third-party wrongdoer.

The action included both the insurers' $1.1 million subrogated claim and the insured's $700,000 uninsured loss claim.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the insured should retain carriage and control given its diligence, the insurers' delay, and the lack of prejudice to the insurers.

The respondent's cross-appeal for full indemnity costs was also dismissed.

The appellants' outdoor in-ground swimming pool was damaged by hydrostatic uplift pressure.

Their property insurance policy contained a common exclusion for settling, expansion, contraction, moving, bulging, buckling or cracking, as well as an exclusion for outdoor swimming pools.

The appellants had purchased an endorsement specifically covering their outdoor swimming pool, which stated that all other terms, conditions, and exclusions remained unchanged.

The application judge held that the common exclusion applied, denying coverage.

On appeal, the Court of Appeal held that applying the common exclusion to the endorsement would render the coverage for the most obvious risks nugatory, virtually nullifying the coverage.

The appeal was allowed, and a declaration of coverage was granted.

The appellant sued the respondent bottled water supplier for psychiatric injury after finding dead flies in an unopened replacement bottle of water.

The trial judge awarded damages, but the Court of Appeal overturned the decision.

The Supreme Court of Canada dismissed the appeal, holding that while the respondent owed a duty of care and breached it, the damage was too remote.

The Court established that for psychiatric injury to be compensable in negligence, it must be reasonably foreseeable that a person of ordinary fortitude would suffer serious injury from the breach.

The plaintiff condominium corporation discovered three serious construction defects relating to fire safety in its buildings.

One defect was discovered in 1993, while the other two were not discovered until 1996.

The defendant municipality, which negligently inspected the buildings, argued that the discovery of the first defect triggered the limitation period for all defects arising from the same negligent inspection, rendering the entire claim statute-barred.

The Court of Appeal held that independently discoverable construction defects caused by a single act of negligence give rise to separate causes of action.

Because the interior defects could not have been reasonably discovered when the exterior defect was found, the limitation period for the interior defects ran separately and the claim was not statute-barred.

The appellant insurer appealed a decision finding that the respondents were entitled to recover under the Family Protection Coverage (FPC) Endorsement of an automobile insurance policy.

The respondents were injured in a collision caused entirely by an uninsured motorist.

The appellant argued that because it was obliged to pay $1,000,000 under the liability coverage to one of the injured family members (due to the mother's contributory negligence), its maximum liability under the FPC Endorsement to the other family members was zero.

The Court of Appeal dismissed the appeal, holding that the mother was not jointly liable with the uninsured motorist for the damages suffered by the respondents, and therefore the liability coverage available to her did not reduce the insurer's maximum liability under the FPC Endorsement.

The appellants appealed an order of the Superior Court of Justice and brought a motion to adduce fresh evidence based on ineffective assistance of counsel.

The Court of Appeal dismissed the motion for fresh evidence, finding the affidavit did not make out the case.

On the appeal, the Court allowed the appeal in part, setting aside a paragraph of the lower court's order that awarded unliquidated damages for repair costs.

The Court found that under Rule 19.05(2), the affidavit evidence supporting the repair costs was unsatisfactory as it lacked details and the deponent's qualifications.

The appeal was allowed in part without prejudice to the respondent's right to pursue the claim on proper evidence.

Costs of $4,000 were awarded to the respondent on agreement.

Following the release of the appeal decision, counsel requested clarification regarding the costs of the trial.

The Court of Appeal clarified its previous ruling, ordering that the respondent pay the costs of the action at trial, to be fixed by the trial judge, if demanded.

The plaintiff suffered a major depressive disorder and phobia after seeing a dead fly in an unopened bottle of water supplied by the defendant.

The trial judge awarded damages for psychiatric injury, finding the plaintiff's extreme reaction was due to his particular cultural background and sensibilities.

The Court of Appeal allowed the defendant's appeal and dismissed the action.

The Court held that in tort, psychiatric harm must be reasonably foreseeable in a person of normal fortitude and robustness.

The plaintiff's highly unusual reaction did not meet this objective test.

The Court also dismissed the contract claim, finding that psychiatric harm was not in the reasonable contemplation of the parties at the time the contract was formed.

The appellant appealed a summary judgment decision.

The motion judge had granted summary judgment by choosing between conflicting expert opinions on the application of the Quebec Automobile Insurance Act to the facts of the case.

The Court of Appeal allowed the appeal, holding that foreign law is a question of fact and the motion judge was not entitled to look beyond the diametrically opposed expert opinions to resolve the issue on a summary judgment motion.

The summary judgment was set aside.

The appellant municipality entered into an agreement to sell surplus land to the respondent developer but failed to give public notice of the proposed sale as required by s. 268(3)(c) of the Municipal Act, 2001.

When the municipality refused to close the transaction due to a zoning dispute, the developer sued for breach of contract.

The municipality argued the agreement was void because of its own failure to provide the statutory notice.

The Court of Appeal held that while the statute requires notice to be given before a binding agreement is signed, the failure to do so did not render the contract void or unenforceable, as the statute does not expressly invalidate such contracts and public policy does not favour voiding contracts for technical deficiencies.

The appellants appealed a trial judgment awarding damages arising from a fatal motor vehicle accident.

The appellants argued the trial judge erred in finding the respondent was the deceased's 'spouse' under the Family Law Act, as they had not 'moved in' together three years prior to the accident.

The Court of Appeal dismissed the appeal, holding that 'living together in a conjugal relationship' is a flexible, unitary concept and maintaining separate residences does not preclude a finding of cohabitation.

The court also upheld the trial judge's refusal to reduce damages for contingencies, as no evidence was led on that issue.