James G. Norton

Following the dismissal of the plaintiffs' action for damages arising from an explosion and fire, the defendants sought costs on a substantial indemnity basis.

The court found that the plaintiffs engaged in egregious and abusive conduct, including advancing unfounded and shifting damages theories, failing to produce relevant documents, and relying on concocted evidence.

The court awarded the defendants costs on a partial indemnity scale up to the date of their reasonable offer to settle, and on a substantial indemnity scale thereafter.

The plaintiffs were also held liable for the costs of the third and fourth parties, as their involvement was a natural and inevitable consequence of the litigation.

Total costs and disbursements were fixed at $2,339,433.08.

The plaintiffs sought over $16 million in consequential economic losses following a natural gas explosion and fire in the laundry room of their apartment building.

They claimed the explosion caused high vacancy rates, prevented rent increases, and diminished the building's value upon its sale five years later.

The court dismissed the action, finding the plaintiffs failed to prove the hypothetical losses were caused by the explosion rather than their own business decisions, such as a disruptive elevator modernization project.

The court assessed the actual diminution in value and economic loss at $156,631, which was fully offset by $162,457.81 already paid by the plaintiffs' insurer.

This is a trial ruling excluding proposed expert opinion evidence from a forensic accountant (Ivor Gottschalk) on quantification of lost rental revenue after a 2010 explosion and fire.

The court held the evidence failed the necessity requirement and the expert lacked independence and an investigative mindset; the gatekeeping cost-benefit analysis also favoured exclusion.

The ruling was made after a voir dire held Feb 19–20, 2025, and reasons were issued Feb 27, 2025.

This endorsement addresses three motions in a long-standing negligence action stemming from a 2010 explosion.

The Plaintiffs brought motions to strike the Defendants' pleadings for alleged non-disclosure of settlement agreements and for the recusal of the case management and trial judge due to a perceived apprehension of bias.

The Defendants brought a motion for directions concerning the scope of damage claims, specifically challenging a new "reinvestment claim" advanced by the Plaintiffs.

The court dismissed both of the Plaintiffs' motions, finding no change in the litigation landscape requiring disclosure of the agreements and no reasonable apprehension of bias.

The court granted the Defendants' motion for directions, ruling that the Plaintiffs' new reinvestment theory of damages was unpleaded, untimely, and would cause non-compensable prejudice to the Defendants.

The moving parties sought to review an order from a single judge of the Court of Appeal that dismissed their motion for a stay of two interlocutory orders from a Superior Court case management judge.

The interlocutory orders had vacated pre-trial and trial dates and allowed a motion for directions.

The Court of Appeal panel dismissed the review motion, finding no factual or legal errors by the motion judge, who correctly applied the RJR-MacDonald test for a stay.

The panel also noted that the stay motion was moot as the vacated dates were long past and the disputed motions had already been heard and were under reserve.

The moving parties brought a motion for leave to appeal the orders of the motion judge dated October 3 and 5, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents jointly in the amount of $10,000.

The applicant security company sought a declaration that it was an additional insured under a builder's risk insurance policy issued by the respondent to a construction company.

The applicant provided security services at a construction site that was vandalized and set on fire, leading to an underlying negligence action against the applicant.

The applicant argued it was a 'supplier' under the policy.

The court dismissed the application, finding that the plain and ordinary meaning of the policy clearly excluded suppliers who perform no construction work, thereby excluding the applicant.

The appellants appealed the dismissal of their motion to amend their statement of claim to advance personal claims for damages and increase the prayer for relief, stemming from an explosion in an apartment building they previously owned through a numbered company.

The Court of Appeal dismissed the appeal, upholding the motion judge's decision.

The court found the motion to amend was brought too late, would cause presumed non-compensable prejudice to the defendants by materially altering the factual framework and requiring new evidence, and that the proposed personal claims by shareholders lacked a proper legal foundation as they did not demonstrate a personal cause of action separate from the company's claims.

The plaintiffs brought a motion to amend their Statement of Claim to increase the prayer for relief from $7.5 million to $57.5 million and to specifically plead personal damage claims on behalf of the individual plaintiffs arising from the forced sale of an apartment building following an explosion.

The defendants opposed the motion, arguing prejudice and that the individual plaintiffs, as shareholders of holding companies, had no personal cause of action under the rule in Foss v. Harbottle.

The court dismissed the motion, finding that the significant delay in seeking the amendment resulted in presumed prejudice that was not rebutted, and that the proposed amendments failed to disclose a reasonable cause of action.

The appellants, plaintiffs in the underlying action, brought a motion before a single judge of the Court of Appeal seeking an order to compel the Regional Senior Judge to set an expedited four-week trial date.

This motion followed a previous Court of Appeal order that had set aside a partial summary judgment and directed the action to be restored to the trial list on an expedited basis.

The appellants argued that the action had not been restored as ordered.

The motion judge, assuming jurisdiction without deciding the *functus officio* argument, dismissed the motion.

The judge found that the previous order had not been breached and emphasized the inappropriateness of interfering with the trial judge's ongoing case management, who was actively preparing the case for trial.

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.

The applicant obtained a default judgment against a contractor for defective sewer installation and sought to enforce the judgment directly against the contractor's insurer under s. 132 of the Insurance Act.

The insurer denied coverage because the contractor failed to report the claim for nine years, breaching the policy's prompt notice condition.

The court found that the insured breached the notice condition and declined to grant relief from forfeiture, concluding that the delay was unreasonable, substantial, and prejudiced the insurer's ability to investigate and pursue third-party claims.

The application was dismissed.

The applicants sought judicial review of a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision that barred their civil action for personal injuries sustained in a bridge collapse.

The WSIAT had determined that the injured applicant was a 'worker' rather than an 'executive officer' of his company, thereby precluding the lawsuit under the historic trade-off of the workplace insurance scheme.

The Divisional Court applied a reasonableness standard of review and found that the WSIAT did not err in its treatment of the evidence, its allocation of the burden of proof, or its ultimate conclusion.

The application for judicial review was dismissed.

The plaintiff sought leave to enforce a consent judgment obtained following a settlement agreement arising from a large employee fraud.

The moving party argued that the defendant had materially breached the settlement agreement by failing to disclose assets, gifts, and financial transactions and by failing to account for significant proceeds obtained from resale of goods purchased through the fraud.

The court held that the consent judgment was contractually linked to the settlement agreement and therefore subject to conditions restricting enforcement against the defendant’s residence unless a material breach occurred.

The court found multiple material breaches, including undisclosed loans, gifts, assets, and evasive disclosure regarding hundreds of thousands of dollars in proceeds.

The breaches removed the contractual protection against execution.

Leave was granted nunc pro tunc for issuance of a writ of seizure and sale.

The appellant appealed a Master's order requiring her to post $40,000 in security for costs in her solicitor's negligence action.

The respondents brought a preliminary motion to strike a ground of appeal as an impermissible collateral attack on a prior unappealed order, which the court granted.

On the main appeal, the court found no palpable and overriding error in the Master's findings that the appellant was ordinarily resident outside Ontario and had failed to establish impecuniosity with robust particularity.

The court held the Master correctly applied the law in assessing the merits of the action and balancing the parties' interests.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff brought a motion to compel answers to refusals and undertakings arising from an examination for discovery in an insurance coverage dispute following a parking garage collapse.

The defendant insurer resisted production of certain documents and adjuster notes on the basis of litigation privilege and solicitor‑client privilege.

The court determined that litigation privilege arose after an unequivocal threat of litigation made by the insured’s representative on July 20, 2010, and that documents created after that date were protected.

Several earlier communications reflecting legal advice from counsel were also protected by solicitor‑client privilege, while limited factual portions of adjuster notes were ordered produced.

The court partially required disclosure of non‑privileged factual information but otherwise upheld the insurer’s privilege claims.

The moving party hospital sought summary judgment dismissing a medical negligence action arising from a post-surgical brain infection allegedly caused by a nurse’s failure to report purulent drainage from a patient’s incision prior to discharge.

The plaintiffs alleged the nurse negligently allowed discharge without informing the treating physician or properly documenting the observation.

The court held that the motion record permitted a full appreciation of the issues and that the circumstantial and usual-practice evidence supported the inference that the nurse had reported the drainage to the physician and complied with the applicable standard of care.

The plaintiffs failed to produce evidence contradicting the nurse’s usual practice or establishing causation between any alleged failure and the injury.

Summary judgment was therefore granted dismissing the claims and cross‑claims against the hospital.

The respondents brought a motion for security for costs against the appellant.

Following the hearing of the motion, the parties were unable to resolve the issue of costs.

The Court of Appeal awarded costs of the motion to each of the moving parties on a partial indemnity basis, fixed at $7,500 each, payable by the responding party.

The respondents brought a motion for security for costs of the appeal.

The appellant argued the issue was res judicata because a pre-trial motion for security for costs had been dismissed.

The Court of Appeal rejected the res judicata argument, noting that the circumstances before and after a trial are different.

The court found that the appellant, a foreign corporation, failed to discharge its burden of proving it lacked access to funds to post security.

The motion was granted, and the appellant was ordered to post $120,000 in security for costs.