Hillel David

Following an appeal, the court issued a costs endorsement.

The appellant was ordered to pay the respondents their costs of the appeal on a partial indemnity basis, fixed at $20,000 inclusive of disbursements and GST.

The appellants appealed a motion judge's decision granting summary judgment and finding no genuine issue for trial regarding the respondent's possible negligence.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the limited evidence of erratic driving was too ill-defined to permit an inference that the oncoming driver could have or should have reasonably taken evasive action.

Costs of $6,000 were awarded to the respondent.

The insurer appealed an order requiring it to indemnify the insured general contractors under two Commercial General Liability (CGL) policies for the cost of repairing structural defects in new homes caused by defective concrete supplied by a subcontractor.

The insurer argued that CGL policies inherently do not cover an insured's own defective work or product.

The Court of Appeal dismissed the appeal, holding that the application judge correctly focused on the specific language of the policies rather than general insurance principles.

The policies contained an explicit exception to the defective work exclusion for work performed by a subcontractor, which operated to restore coverage.

The appellants appealed a trial judgment awarding damages for a brain injury sustained in a motor vehicle accident.

They argued the trial judge erred in relying on the opinion of a psychiatrist over other specialists who found no brain injury.

The Court of Appeal dismissed the appeal, holding that the expert was qualified to give the opinion and the trial judge made no palpable and overriding error in preferring it.

The court also upheld the trial judge's findings on lost income and the application of a tax gross-up on future care costs.

The appellant, a wholesale distributor of fresh fruit, suffered produce spoilage due to a widespread power failure that caused its refrigeration equipment to stop working.

The respondent insurer denied the claim based on exclusion clauses for mechanical/electrical breakdown and changes of temperature.

The motion judge granted summary judgment for the insurer and refused the appellant's request for an adjournment to file evidence on the reasonable expectations of the parties.

The Court of Appeal dismissed the appeal, finding that the refusal to grant an adjournment would not have affected the result and that the change of temperature exclusion clause was clear and unambiguous.

The plaintiff suffered permanent vestibular toxicity after being treated with the antibiotic Gentamicin for a severe sinus infection.

At trial, the otolaryngologist was found liable for failing to properly monitor for ototoxicity and failing to emphasize the need for ongoing vigilance regarding symptoms.

The trial judge also granted a non-suit dismissing the action against the home care nurses (VON).

On appeal, the Court of Appeal overturned the finding of liability against the doctor, concluding there was no evidence that the two-to-three-day delay in discontinuing the medication caused the plaintiff's injuries.

The Court also rejected an alternative argument based on lack of informed consent, finding that a reasonable person in the plaintiff's position would have continued the medication.

The appeal against the VON was dismissed as no expert evidence established the standard of care for home care nurses.

The plaintiff suffered permanent vestibular toxicity after being treated with the antibiotic Gentamicin for a severe sinus infection.

At trial, the otolaryngologist was found liable for failing to properly monitor for ototoxicity and failing to emphasize the need for ongoing vigilance regarding symptoms.

The trial judge also granted a non-suit dismissing the action against the home care nurses (VON).

On appeal, the Court of Appeal overturned the finding of liability against the doctor, concluding there was no evidence that the two-to-three-day delay in discontinuing the medication caused the plaintiff's injuries.

The Court also rejected an alternative argument based on lack of informed consent, finding that a reasonable person in the plaintiff's position would have continued the medication.

The appeal against the VON was dismissed as no expert evidence established the standard of care for home care nurses.

The appellant appealed a judgment dismissing his action following a jury verdict that found no negligence by the respondent driver, who suffered a medical episode while driving.

The appellant argued the trial judge misdirected the jury on the defence of inevitable accident and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding no error in the jury instructions and holding that the verdict was supported by evidence that the respondent had no prior daytime episodes, no medical warnings against driving, and no advance warning of the episode.

The appellants appealed a trial judgment finding that the undischarged bankrupt acquired shares and diverted property in violation of the Bankruptcy and Insolvency Act.

The trial judge found that the bankrupt collaborated to conceal assets from the trustee and ordered an accounting by the corporate appellants.

The Court of Appeal dismissed the appeals, finding ample evidence to support the trial judge's conclusions on share ownership, jurisdiction, and credibility, and upheld the award of substantial indemnity costs.

The appellant insurance company appealed a decision regarding the cancellation of an insurance policy.

The Court of Appeal found that the trial judge misapprehended the evidence regarding the calculation of a premium refund.

The uncontradicted evidence showed that the insured requested the cancellation of the policy due to dissatisfaction with the broker.

The Court concluded that the entire policy, including the completed operations hazard provision, was cancelled.

The appeal was allowed and the application dismissed.

The infant plaintiff allegedly suffered damages as a result of negligent surgery and follow-up treatment in Quebec while the plaintiffs were residents of that province.

The plaintiffs subsequently moved to Ontario and commenced an action in Ontario.

The defendants brought motions to stay the action on the basis that Ontario courts had no jurisdiction or that Ontario was not a convenient forum.

The motions judge granted the motions and stayed the actions.

The Court of Appeal dismissed the appeal, finding no real and substantial connection between the claim and Ontario, and concluding that Quebec was clearly the more appropriate forum.

The appellants appealed a trial judgment declaring that the appellant Foo was not the beneficial owner of shares in the respondent corporation.

The appellants argued the trial judge improperly relied on extrinsic parol evidence and ignored an entire agreement clause in the initial share exchange agreement.

The Court of Appeal dismissed the appeal, holding that the trial judge correctly considered extrinsic evidence given the problematic nature of the transactions, which included backdated documents, inconsistencies, and unfulfilled underlying purposes.

The court noted that even if the appellants' arguments regarding the initial agreement were accepted, a subsequent acknowledgement would have reversed the transfer anyway.

The appellants appealed a trial judgment finding them liable for fraud, awarding damages and punitive damages, and granting an oppression remedy.

The appellants operated a petroleum supply business that became insolvent.

They continued to order gasoline from the respondent without intending to pay, using the proceeds to pay themselves and their lawyers.

The Court of Appeal upheld the finding of fraud and the compensatory damages of $539,658.41 for gasoline delivered after January 9, 1997.

However, the Court struck the oppression declaration, the $300,000 punitive damages award, and the order subordinating the appellants' secured claims, allowing the appeal in part.

The appellant trustee in bankruptcy retained the respondent law firm as estate solicitor to collect funds held in trust.

After the respondent performed significant work laying the foundation for recovery, the appellant terminated the retainer without cause, settled the matter, and sought to use its statutory priority under s. 136 of the Bankruptcy and Insolvency Act to pay its own fees, which would exhaust the estate and leave the respondent unpaid.

The Court of Appeal dismissed the trustee's appeal, holding that while unjust enrichment did not apply, the trustee's conduct amounted to equitable fraud.

Equity will not permit a statute to be used as an instrument of fraud, and it would be unconscionable to allow the trustee to take unfair advantage of its legal rights in these circumstances.

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

Costs were awarded on a partial indemnity scale to the respondents and cross-appellants, Father Reed and the Diocese, in the amount of $18,000.

The Phoenix group of insurers and the Ecclesiastical Insurance Office were each awarded costs of $5,549.02.

The plaintiff brought an action against a priest and a diocese for sexual assault.

The parties settled the main action, but a third party action continued regarding insurance coverage.

The trial judge found that the appellant insurer had a duty to defend the claims under its policy.

The insurer appealed, arguing the policy did not cover sexual assaults by an employee.

The Court of Appeal dismissed the appeal, finding the policy language broad enough to cover the claims.

On cross-appeal, the Court upheld the trial judge's allocation of defence costs among the insurers but allowed the cross-appeal regarding costs of the third party proceedings, holding that the insureds were entitled to costs on a solicitor-and-client basis due to the insurer's wrongful denial of the duty to defend.

The appellant doctor appealed a trial judgment finding him liable for failing to warn the respondent about the risks of taking the drug AC&C with her ulcer condition.

The Court of Appeal allowed the appeal, finding that the respondent failed to prove causation.

Applying the modified objective test, the Court held that the respondent did not establish that a reasonable person in her circumstances would have refused the drug if properly warned, especially given evidence that she had previously ignored another doctor's warning to stop taking it.

The appellant municipality appealed a judgment finding it liable for negligent misrepresentation arising from assurances given at council meetings that a road would be upgraded in time to permit a subdivision development.

The court held that the trial judge was entitled to accept the respondent's evidence over the municipal minutes, and that the respondent reasonably relied on the assurances in proceeding with the development agreement and related expenditures.

The representations were treated as implying an existing municipal commitment and ability to complete the road work, not merely non-actionable future promises.

In the circumstances, where the Reeve spoke before full council without correction, the municipality could be liable at the operational level in negligence.

The appeal was dismissed with costs.

The appeal concerned whether a statutory accident benefits settlement notice complied with the commuted value disclosure requirement under s. 9.1(2), para. 5 of the Automobile Insurance Regulation.

The court held that a description of the maximum statutory accident benefits available to the insured was not a commuted value of those benefits, and that the notice provided did not satisfy the regulation.

The insured was therefore entitled to rescind the settlement under s. 9.1(4).

The court dismissed the appeal, while clarifying that an insurer may determine commuted value based on the information available if done in good faith and with clear factual assumptions.

The appellant dentist appealed an order striking his statement of claim against counsel retained by the professional regulator in disciplinary proceedings.

The Court of Appeal majority held that novelty was not a basis to strike a malicious prosecution claim at the pleading stage and that the pleaded civil conspiracy claim should also stand.

Although the pleadings were poorly drafted, the majority concluded the matter should proceed to trial, leaving the trial judge to assess the various claims on the evidence.

The appeal was allowed, the motion judge's order was set aside, and the motion to strike was dismissed with costs to the appellant here and below.