Jacqueline Cole

The appellants, representative plaintiffs in a certified class proceeding concerning universal life insurance policies, appealed the dismissal of their motion to amend their statement of claim and add a new common issue regarding an 'Investment Spread Claim'.

The motion judge refused the amendments on the basis that the claim was a new cause of action that was discoverable in 2016 and therefore statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's decision, agreeing that the claim was not captured by existing pleadings, was discoverable based on a 2016 repricing report, and did not engage a rolling limitation period as it involved discrete decisions rather than periodic breaches.

The court-appointed Administrator of an estate brought a motion to appoint an investigator to review the accounts and assets of two intertwined family estates.

The estates had been mired in years of acrimonious litigation among the sibling beneficiaries, with allegations of breached fiduciary duties and misappropriated funds.

Finding that the accounts were complex, significant information was missing, and the parties were highly dysfunctional, the court granted the motion and appointed the investigator to provide a neutral analysis.

The plaintiffs in a class proceeding regarding universal life insurance policies brought a motion for a further and better affidavit of documents.

The plaintiffs sought production of 12 general categories of documents and several specific documents related to the defendant's repricing of the cost of insurance and administrative fees.

The court applied the principles of relevance and proportionality, granting production for some requests, such as internal communications regarding policyholder communications and documents related to the 'Maximum Premium' in death spiral situations, while dismissing others that were overly broad, irrelevant, or disproportionate.

Costs of $50,000 were awarded in the cause.

The respondents brought a motion to stay the applicant's court application in favour of arbitration pursuant to s. 7(1) of the Arbitration Act, 1991.

The dispute arose from a royalty agreement concerning mining claims, which contained an arbitration clause.

The applicant argued that the court should determine the arbitrator's jurisdiction based on exceptions to the competence-competence principle.

The court found that the issues raised, including limitation periods, termination rights, and the application of contra proferentem, required more than a superficial review of the evidentiary record and were not pure questions of law.

The motion to stay was granted, and the alternative request for security for costs was dismissed.

Following the dismissal of Bell Canada's application, Cloudwifi's motion to dismiss/stay, and Cloudwifi's cross-application, both parties sought costs.

Bell sought partial indemnity costs of $122,572.78, and Cloudwifi sought $116,145.76.

The court declined to award costs to either party.

Bell was not entitled to costs as its application was dismissed.

Cloudwifi was denied costs despite its success on the jurisdictional issue because its actions in unlawfully utilizing Bell's equipment amounted to significant misconduct.

The plaintiffs brought a motion to certify a class action against the manufacturers of the antidepressant Celexa (citalopram), alleging the drug caused congenital malformations when ingested by pregnant women and that the defendants failed to warn of this risk.

The court found that while the pleadings disclosed a cause of action and there was an identifiable class, the proposed common issue regarding the duty to warn lacked commonality because the risk of birth defects varied widely and individual causation issues would dominate.

The court concluded a class proceeding was not the preferable procedure due to the inevitability of complex individual trials, and dismissed the certification motion.

The defendants brought a motion for summary judgment to dismiss the plaintiff's medical malpractice claim regarding therapeutic Botox injections.

The court found the action was statute-barred because the plaintiff had actual knowledge of the material facts and attributed her symptoms to the Botox treatment well beyond the two-year limitation period.

Furthermore, the court held that the plaintiff's failure to produce expert evidence establishing a breach of the standard of care and causation meant there was no genuine issue requiring a trial.

The motion for summary judgment was granted and the action dismissed.

Following the dismissal of the plaintiffs' motion for class certification and the defendant's mixed success on a summary judgment motion, the defendant sought costs of $3.6 million on a substantial indemnity basis.

The plaintiffs argued the award should not exceed $775,000.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by the plaintiffs in pleading misrepresentation.

Considering the defendant's technical loss on the summary judgment motion, which nonetheless provided a strategic victory in defeating certification, the court fixed costs at $1.0 million on a partial indemnity basis as a fair and reasonable amount.

The plaintiffs brought a motion to certify a class action against a life insurance company, alleging breach of contract regarding increases to the cost of insurance and administrative fees for universal life insurance policies.

The court had previously adjourned the motion to allow for further evidence on how the fees were calculated.

After reviewing actuarial evidence, the court found that the insurer had set and adjusted the fees in accordance with the policy terms and industry practice.

Concluding there was no basis in fact for the breach of contract claims, the court dismissed the certification motion in its entirety.

The defendants sought costs following the dismissal of the plaintiffs' action.

Vancity claimed substantial indemnity costs based on a Rule 49.10 offer to settle.

The court held that Rule 49.10 does not apply where an action is dismissed, and awarded partial indemnity costs.

The court rejected the plaintiffs' arguments that the defendants' claimed hours were excessive, noting the plaintiffs failed to produce their own bill of costs for comparison.

The court fixed Vancity's fees at $200,000 and Co-operators' fees at $130,000, plus HST and allowable disbursements.

The plaintiff sought to add an orthopaedic surgeon as a co-defendant to a medical malpractice action nearly ten years after the surgery, alleging that the surgeon fraudulently concealed an intraoperative event.

The Master granted the motion to add the surgeon with leave to plead a limitation period defence.

On appeal, the Superior Court of Justice set aside the Master's order, finding that the plaintiff and his counsel knew or ought to have known of the potential claim against the surgeon shortly after the surgery.

The court held that there was no fraudulent concealment and that the claim against the surgeon was statute-barred.

The plaintiff brought a motion for leave to amend the statement of claim to add a surgeon as a defendant in a medical negligence action after the action had already been set down for trial.

The proposed defendant opposed the motion on the basis that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that there were genuine issues of fact and credibility regarding discoverability, including allegations that the proposed defendant failed to disclose an intra‑operative complication and may have misled the plaintiff’s counsel.

Applying the approach in Wong v. Adler, the court determined that such factual disputes should not be resolved on a motion to amend.

The surgeon was therefore added as a defendant with leave to plead a limitation defence.