Iain Peck

The Plaintiffs brought a motion to correct misnomers and add several corporate entities as defendants in an action stemming from a fire.

The motion sought to correct the name of "Cooper Lighting Internacional, S. de R.L. de C.V." to "Cooper Lighting de Mexico S. de R.L. de C.V." and to add "Cooper Lighting LLC""Cooper Lighting Canada Limited""SLP Lighting LLC""Koller Enterprises", and "David Koller".

Applying the principles of misnomer from Loy-English, the court found that the "litigation finger" pointed at the Cooper Lighting entities and SLP Lighting LLC, allowing their addition/correction despite delays.

However, the requests to add Koller Enterprises and David Koller were dismissed due to insufficient evidence of their direct involvement as manufacturers or distributors.

The court exercised its discretion to grant the amendments, noting the lack of non-compensable prejudice to the proposed defendants and shared responsibility for litigation delays.

Orchid Leasing Corporation brought a motion for summary judgment to dismiss the plaintiff's claim and Kent & Essex Mutual Insurance Company's cross-claim against it, arguing it was not the legal owner of the tractor involved in a motor vehicle accident at the time of the incident.

The court applied the principles of summary judgment and the legal test for ownership under the Highway Traffic Act, which establishes a rebuttable presumption of ownership based on MTO registration.

The court found that Orchid had successfully rebutted this presumption by demonstrating it had transferred all indicia of ownership and control to the driver, Dhillon, prior to the accident.

Consequently, the motion for summary judgment was granted, dismissing all claims against Orchid.

Following a trial where the plaintiffs were awarded $535,032.78 in damages for demolition and reconstruction costs, the plaintiffs sought partial indemnity costs of $102,663.19.

The defendant argued costs should be reduced due to the plaintiff's failure to comply with pre-trial discovery obligations and because the damages awarded were significantly less than the $2 million claimed.

The court agreed that the plaintiff's failure to produce relevant documents hindered the trial process and reduced the costs award by $10,000, ordering the defendant to pay $92,633.19.

The respondent purchased a transformer from the appellant, which failed due to a defective tap changer.

The respondent sued for breach of contract and was granted summary judgment based on the 'fit for purpose' warranty in the Sale of Goods Act.

The appellant appealed, arguing that summary judgment would prejudice its cross-claim against the third-party manufacturer.

The Court of Appeal dismissed the appeal, finding no triable issue regarding the contract breach and no risk of inconsistent findings of fact in the remaining cross-claims.

The applicant, Freyssinet Canada Limitée, brought a Rule 21 motion to determine a question of law regarding whether Parkway Infrastructure Constructors (PIC) is precluded from recovering damages claimed in its counterclaim, which are also claimed against Builder's Risk insurers.

Freyssinet argued that a covenant to insure in the Project Agreement, and potentially an implied term in the Subcontract, allocated risk away from it.

The court dismissed the motion, finding that material facts were in dispute, the enforceability and interpretation of the Subcontract were contested, and a full factual record was necessary for proper adjudication.

The court also found no legal bar to PIC's counterclaim, noting that PIC was not acting as an insurer bringing a subrogated claim against its own insured.

The plaintiffs sued the defendant construction manager for construction deficiencies.

The defendant brought a third party claim for contribution and indemnity against the architects.

The architects moved for summary judgment, arguing the claim was barred by a six-year contractual limitation period in their agreement with the plaintiffs.

The motion judge dismissed the motion, finding that s. 18 of the Limitations Act, 2002 superseded the common law principle that a contractual limitation can preclude a claim for contribution.

The Divisional Court allowed the appeal, holding that s. 18 does not override the established principle from Giffels that a party cannot claim contribution and indemnity where the plaintiff's rights against the third party have been extinguished by contract.

The plaintiff condominium corporation sued the adjacent property owner for damages to its easement rights due to the defendant's failure to maintain a shared retaining wall, pleading negligence and nuisance.

The defendant, third parties (Development Engineering (London) Limited, Aviva Insurance Company of Canada), and fourth party (Atkinson, Davies Inc.) brought motions for summary judgment to dismiss the claims.

The court found no common law, statutory, contractual, or equitable duty for the servient tenement (defendant) to repair the wall, especially since the defendant was not responsible for its initial collapse.

Consequently, the plaintiff's claims were dismissed.

The court also found that the defendant, third parties, and fourth party were not concurrent tortfeasors, thus precluding claims for contribution and indemnity under the Negligence Act.

The applicant, a former Pizza Nova franchisee, alleged discrimination with respect to employment on the basis of ancestry, place of origin, ethnic origin, and age.

He claimed the respondents harassed and pressured him into selling his franchise.

The Tribunal found that the respondents had legitimate, non-discriminatory reasons for their actions, citing numerous material breaches of the Franchise Agreement, including poor cleanliness, unauthorized ingredients, and customer complaints.

The Tribunal concluded the applicant failed to establish a prima facie case of discrimination and dismissed the application.

The defendant/plaintiff Nicol moved for an order to try four actions together, or alternatively, to try two specific actions together and waive the deemed undertaking rule.

The court dismissed the primary request for joinder of all four actions, finding the issues between the property damage claims and the service provider claims distinct and that the matter was largely res judicata.

However, the court granted the alternative relief, ordering the two property damage actions (McColgan and Piccolotto) to be tried together, and the service provider actions to be severed and tried separately.

The court also waived the deemed undertaking rule.

Costs were awarded against Nicol on a substantial indemnity basis for McColgan and Piccolotto, and partial indemnity for the Service Providers, due to Nicol's unsuccessful primary motion and refusal of reasonable settlement offers.

The third party architect brought a motion for summary judgment to dismiss a third party claim for contribution and indemnity brought by the defendant general contractor.

The architect argued that its contract with the plaintiff contained a six-year limitation of liability clause that had expired.

The court dismissed the motion, finding that section 18 of the Limitations Act, 2002 provides a two-year limitation period for contribution and indemnity claims that supersedes the contractual limitation between the plaintiff and the third party.

The court also noted in obiter that the contractual limitation clause would have impliedly extended to the individual architect.

This motion concerned the certification of a class action arising from a fire at a self-storage facility.

The plaintiff sought to certify a class proceeding on behalf of tenants who lost property, claiming damages in contract, tort, and unjust enrichment.

The court certified the action, finding that four of the five certification requirements under the Class Proceedings Act, 1992 were met.

Most proposed common issues related to negligence, limitation of liability, assignment of leases, and punitive damages were certified, while issues regarding prejudgment interest and unjust enrichment for retained advance rental payments were not.

No costs were awarded due to the parties' cooperation and the substantial revision of issues.

The applicant sought an order appointing a mediator/arbitrator under a construction contract dispute clause arising from a fire that occurred more than a decade after project completion.

The respondent argued that the dispute was properly before the courts, particularly as the applicant had commenced a multi-party action against numerous defendants not bound by the arbitration clause.

The court held that the arbitration provisions were intended to operate during the course of the construction project and that ordering arbitration would create parallel proceedings and potential prejudice to other parties.

Relying on prior authority addressing similar procedural conflicts, the court found that the applicant could not pursue arbitration against one party while simultaneously litigating broader claims in court.

The application was dismissed.

The appellant appealed an order striking his claim against a Texas lawyer and an Ontario lawyer for conduct related to Texas litigation and subsequent Ontario enforcement proceedings.

The Court of Appeal upheld the motion judge's decision, finding the claims of conspiracy, intentional infliction of harm, and interference with contractual relations were misconceived and disclosed no cause of action.

The court also found no merit in the appellant's argument that the motion judge should have recused himself for reasonable apprehension of bias.

The appeal was dismissed.

The moving defendant sought leave to amend its defence in a construction defect action to plead that the owner’s covenant to insure barred the owner’s claim and entitled the moving party to indemnity.

Applying Rule 26.01, the court held that leave to amend is mandatory absent prejudice that cannot be compensated by costs or an adjournment, and found that the asserted prejudice arising from delay, settlement decisions, and possible claims against former counsel was not sufficient.

The court also held that the proposed insurance-based defence had arguable merit under construction law authorities recognizing that a contractual covenant to insure can shift the risk of project damage.

The amendment was permitted, including a paragraph claiming indemnity for defence costs and apportioned damages, but without prejudice to limitation arguments.

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 plaintiff school board sued multiple defendants, including the appellant engineering firm, for damages arising from a collapsed gymnasium wall.

The plaintiff's claim against the appellant was statute-barred under the Professional Engineering Act.

However, the other defendants brought cross-claims for contribution and indemnity against the appellant within the two-year limitation period under the new Limitations Act, 2002.

The appellant moved for summary judgment to dismiss the cross-claims, arguing they could not survive if the main claim was statute-barred.

The Court of Appeal dismissed the appeal, holding that section 18 of the Limitations Act, 2002 preserves the right to claim contribution and indemnity even if the plaintiff's direct claim against the concurrent tortfeasor is statute-barred.

The appellant town appealed a motion judge's decision that claims made against it in a construction dispute were excluded from its insurance coverage.

The underlying action alleged misrepresentations in a tender bid, breach of contract, and breach of a duty of good faith.

The Court of Appeal applied the three-step process from Scalera to determine the true nature of the claims.

The court found that the essential character of the claims related to the tender process and contractual performance, which were unambiguously excluded under the policy.

The appeal was dismissed.