James B. Tausendfreund

The appellants appealed a jury verdict awarding the respondent over $1.5 million in damages arising from a motor vehicle accident.

The trial judge declined to put certain jury questions proposed by the appellants regarding causation and apportionment of damages between three successive motor vehicle accidents.

The appellants also challenged the trial judge's summary of evidence and her failure to instruct the jury to disregard expert evidence concerning past income loss.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to jury questions and instructions, and finding the jury's damage award was not plainly unreasonable.

This appeal concerned the interpretation of a commercial lease, specifically the allocation of risk for fire damage.

The landlord, James Dick Construction Limited (JDC), sued its tenant, Courtice Auto Wreckers Limited (CAW), for damages after a fire destroyed one leased building and damaged another.

JDC alleged CAW breached the lease by failing to maintain the sprinkler system.

The trial judge dismissed the action, finding that the landlord's covenant to insure the buildings allocated the risk of fire loss to the landlord, even if the tenant was responsible for sprinkler system repair expenses.

The Court of Appeal upheld the trial judge's decision, affirming that while a covenant to insure generally implies risk allocation to the covenantor, this is not an absolute rule and requires a holistic interpretation of the entire contract and surrounding circumstances.

The Court found no extricable error of law or palpable and overriding error in the trial judge's application of the law.

The appellants appealed a summary judgment dismissing their action against TD Canada Trust, arguing errors regarding the availability of summary judgment in civil jury actions, the exclusion of expert evidence, and procedural fairness.

The Court of Appeal dismissed the appeal, affirming that the Hryniak test for summary judgment applies equally to civil jury actions, the motion judge properly excluded the expert evidence, and the process was procedurally fair.

This is an appeal concerning the application of the doctrine of equitable contribution between two insurers, Northbridge and Aviva, for the defence and indemnification of a shared insured, Mr. Daneshvari, in an underlying professional misconduct action.

Both insurers' policies contained "other insurance" clauses purporting to be excess.

The Court of Appeal upheld the application judge's finding that the policies were irreconcilable, requiring equal contribution.

The court affirmed that the standard of review for interpreting these specific "other insurance" clauses was palpable and overriding error, not correctness, as they were not standard form contracts with significant precedential value.

The appeal was dismissed, and Aviva was ordered to pay costs to Northbridge.

The court convened a case conference for four related product liability actions involving fires allegedly caused by defective ventilation units.

After four years of case management, the court discovered that counsel for the defendant had failed to disclose numerous other actions across the province involving the same parties and identical issues, including one that had already proceeded to trial.

Citing counsel's lack of candor and repeated failure to comply with court orders, the case management judge struck the actions from the trial list and declined to continue case managing them.

The appellant held an unsatisfied default judgment against a contractor for defective sewer installation and sought to recover the judgment from the contractor's insurer under s. 132 of the Insurance Act.

The insurer denied coverage because it did not receive notice of the action until nine years after it was commenced.

The application judge dismissed the claim, finding the insured breached the policy's timely notice condition and refusing relief from forfeiture due to prejudice to the insurer.

The Court of Appeal dismissed the appeal, holding that notice provided by the appellant under Statutory Condition 8 did not cure the lack of timeliness, and that the appellant stood in no better position than the insured.

A teenage plaintiff was catastrophically injured when she deliberately jumped from a moving school bus on the last day of Grade 8 as part of an informal tradition among graduating students.

The bus operator had received prior reports of students jumping from buses but failed to report these incidents to the school as required by its own handbook.

A jury found the defendant 75 per cent liable and the plaintiff 25 per cent contributorily negligent, awarding substantial damages.

The defendant appealed on grounds of improper jury charge regarding causation and contributory negligence, erroneous removal of the mitigation issue from the jury, and failure to deduct statutory accident benefits.

The Court of Appeal upheld the jury verdict on causation and contributory negligence, found the trial judge erred in removing mitigation from the jury but determined no miscarriage of justice resulted, and remitted the statutory accident benefits deduction issue to the Superior Court for determination.

The appellants appealed a trial judgment finding them liable for a fuel oil spill at the respondents' home.

The trial judge found that the appellants negligently failed to identify that the respondents' fuel oil tank, which was labelled for indoor use, was installed outdoors, and failed to tag it as non-compliant.

The appellants argued the trial judge erred by applying the 'material contribution' test for causation instead of the 'but for' test.

The Court of Appeal dismissed the appeal, holding that while the trial judge articulated the wrong test, she effectively applied the 'but for' test by finding the spill would not have occurred if the appellants had fulfilled their regulatory obligations.

The Court also upheld the trial judge's apportionment of liability, finding of contributory negligence, and damages assessment.

Following the dismissal of the applicants' claim regarding a turn-key installation of a new milk dairy parlour, the respondent requested $15,000 in costs.

The respondent argued the applicants acted unreasonably, frivolously, vexatiously, or in bad faith by pursuing the application despite a signed release and by alleging the respondent caused a mastitis outbreak in their herd.

The Tribunal denied the request for costs, finding that the applicants had a genuine belief that the release was unenforceable and that the respondent's actions caused the mastitis outbreak, and therefore did not act in bad faith.

The applicants, dairy farmers, sought $150,000 in compensation from a farm equipment dealer under the Farm Implements Act, alleging that defective milking and stabling equipment caused mastitis and elevated somatic cell counts in their herd.

The Tribunal found no proven causal link between the equipment and the herd's health decline.

Furthermore, the Tribunal upheld a settlement release signed by the parties, rejecting the applicants' arguments that it was signed under duress or voided by the respondent's subsequent breach of its confidentiality clause.

The application was dismissed.

On appeal from a trial judgment in a personal injury case arising from a motorcycle accident, the appellants challenged the trial judge's decisions regarding collateral benefits deductions under the Insurance Act.

Specifically, they contested the trial judge's refusal to deduct an overpayment of income replacement benefits and short-term disability benefits from the jury's award.

The appellants argued that if successful on either issue, the respondent's judgment would fall below their Rule 49 settlement offer, warranting a costs adjustment.

The Court of Appeal upheld the trial judge's decisions on both issues and dismissed the appeal.

This is a costs decision on appeal from a trial judgment concerning liability for damages arising from an accident.

The appellants sought to challenge the trial judge's costs award.

The Court of Appeal determined that liability should be apportioned two-thirds to Safranyos and one-third to Hamilton.

The court made a Sanderson order requiring Safranyos to pay one-third of McHugh's costs of trial and appeal, but declined to impose such an order against Hamilton, as Hamilton made no arguments relating to McHugh's liability at trial or on appeal.

The plaintiff sought to add two proposed defendants, Enbridge Gas Distribution Inc. and Rabcon Contractors Ltd., to a personal injury action more than two years after the accident.

The proposed defendants resisted the motion, arguing that the plaintiff failed to exercise due diligence in identifying them within the limitation period.

The court considered the discoverability principle, noting that the City of Toronto (the original defendant) had not disclosed the involvement of other parties in its initial response, pleadings, or discovery, despite having commenced a separate action for contribution and indemnity against the proposed defendants.

Applying proportionality and the principle that cases should be heard on their merits, the court found that no further diligence was required from the plaintiff given the circumstances.

The motion to add the proposed defendants was granted, with costs reserved to the ultimate trier of facts.

A motor vehicle accident occurred at an intersection where a stop sign was positioned between 8.4 and 9.4 metres behind a faded stop line.

The driver of the westbound vehicle failed to see a northbound vehicle and T-boned it, causing serious injury to a passenger.

The trial judge found the driver negligent and also found the municipality breached its duty of repair by failing to repaint the faded stop line, apportioning 50 per cent liability to the city.

The Court of Appeal allowed the city's appeal, finding the trial judge misapplied the ordinary reasonable driver standard by focusing on precise stopping distances rather than considering that reasonable drivers would stop at a point providing sightlines in both directions, as required by the Highway Traffic Act.

A motor vehicle collision occurred at an intersection in Hamilton when a vehicle operated by Ms. Safranyos failed to yield the right-of-way and was struck by a vehicle operated by Mr. McHugh, who had consumed alcohol and was speeding.

The trial judge found all three defendants liable: Ms. Safranyos at 50%, Mr. McHugh at 25%, and the City of Hamilton at 25%.

The City appealed on grounds that the trial judge misapplied the non-repair standard and improperly used adverse inferences.

Mr. McHugh appealed on grounds that the trial judge erred in finding he could have avoided the collision and misused evidence regarding his intoxication.

The Court of Appeal dismissed the City's appeal but allowed Mr. McHugh's appeal, finding the trial judge committed palpable and overriding errors in her factual findings and legal analysis regarding Mr. McHugh's liability.

The appellant appealed the dismissal of his third party claim for delay.

The third party, a dissolved corporation, had successfully moved to dismiss the claim arising from a 1990 oil spill.

The Court of Appeal held that under section 242(1) of the Business Corporations Act, a dissolved corporation has the capacity to defend an action and bring a motion to dismiss without first being revived.

The Court also upheld the motion judge's finding that the appellant's delay was inordinate, inexcusable, and caused presumed and actual prejudice to the respondent.

The appeal was dismissed.

The appellant insurer appealed a summary judgment decision finding that the defendant had cancelled her automobile insurance policy with the respondent insurer prior to a motor vehicle accident.

The appellant argued the motion judge erred regarding the onus of proof, relied on hearsay evidence, and failed to draw an adverse inference.

The Court of Appeal dismissed the appeal, finding the motion judge's conclusion that the policy was cancelled was amply supported by the record, including business records showing the cancellation request and a corresponding credit.

The plaintiffs appealed an order dismissing their action for delay following a status hearing.

The action arose from alleged property damage during a swimming pool cleaning.

The Divisional Court found that the Master erred in her application of the test for dismissal for delay by failing to consider the overall context of the litigation, incorrectly identifying the period of delay, and mechanically applying a presumption of prejudice.

The appeal was allowed, the dismissal order was set aside, and the action was ordered to proceed to mediation and trial.

The moving party, Economical Insurance Group, brought a motion to extend the time to perfect its appeal after the responding party, State Farm, unreasonably delayed settling the order under appeal.

State Farm refused to approve the draft order in a misguided attempt to thwart Economical's right of appeal, forcing the motion.

Although the extension was ultimately agreed upon, the Court of Appeal strongly criticized State Farm's litigation gamesmanship and awarded Economical $5,000 in partial indemnity costs for the motion.

The appellant tripped on a municipal sidewalk and fractured her wrist, but did not notify the City within the 10-day statutory period because she initially believed her injury was minor.

After learning her injury would cause permanent impairment, she retained counsel and provided notice four months post-accident.

The motion judge granted summary judgment dismissing the action, finding no reasonable excuse for the delay.

The Court of Appeal allowed the appeal, holding that the initial lack of awareness of the injury's severity constituted a reasonable excuse.

The Court further held that whether the City was prejudiced by the delay was a genuine issue requiring a trial, as the appellate record was insufficient to make the necessary findings of fact.