Jason P. Mangano

This decision addresses whether the owner of a vehicle (Floyd Thomas) provided implied consent to his son (Robert Thomas) to possess and operate the vehicle, which was involved in a serious accident.

The court found that there was no implied consent, based on clear evidence that Robert knew he did not have permission, and that Floyd had a consistent history of restricting access.

The court declined to dismiss the action entirely, as other negligence issues remained for trial.

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

The Insurers brought a motion for a declaration that the "Prior Acts Exclusion" in their Directors and Officers (D&O) insurance policies barred coverage for a claim asserted against Just Energy's D&Os.

The claim, filed by a representative plaintiff in a class action, sought unpaid wages and benefits from a period prior to Just Energy's Companies’ Creditors Arrangement Act (CCAA) filing.

The court found the Prior Acts Exclusion to be clear and unambiguous.

It determined that the exclusion applied to acts or omissions committed by anyone prior to the CCAA filing date, and that this interpretation was consistent with the commercial context of the policies, which were intended to cover post-filing D&O liability during insolvency.

The court concluded that applying the exclusion did not nullify the policy's main purpose or contradict the reasonable expectations of the parties.

The Insurers' motion was granted, and the representative plaintiff's request for relief against the Insurers was denied.

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

The applicants, Greenwin Inc. and Chubb Insurance Company of Canada, sought a declaration that St. Paul Fire and Marine Insurance Company was obligated to fund 50% of an $18.75 million settlement for Greenwin's share of property damages in a subrogated claim by Toronto Community Housing Corporation (TCHC).

The court dismissed the application, finding that St. Paul did not deny coverage or breach its policy, and that the owned property exclusion applied, precluding coverage for damage to TCHC's property.

The court also found that the applicants failed to obtain St. Paul's consent to the settlement, breaching a fundamental term of the insurance contract, and denied relief from forfeiture.

The applicant, an automobile parts manufacturer, sought a determination of liability insurance coverage from its insurers after settling a product liability claim for $24 million USD.

The dispute centered on when the respondent's umbrella coverage responded and the quantum of the claim.

The court held that the umbrella coverage responded once the primary policy limits were exhausted, and that the applicant was entitled to recover the balance of its loss, including forecast repair costs, totaling $13.4 million USD.

The appellant, a developer and unit owner, appealed a lower court decision that upheld certain administrative and amenity fees imposed by the condominium corporation's By-Law No. 7 on unit owners who rent their units short-term.

The appellant argued these fees were ultra vires the Condominium Act, 1998 and the condominium's declaration, and were oppressive.

The Court of Appeal dismissed the appeal, finding that the fees were consistent with the declaration's intent for rental governance and were not oppressive, as they offset costs attributable to rental activities and were supported by the historical operation and an overwhelming owner vote.

Following an application to strike down certain condominium by-laws, the parties agreed that the successful party should be awarded $25,000 in costs.

Both parties claimed to be the successful party.

The court determined that the respondent was the successful party, as most of the impugned by-laws were upheld, and awarded the respondent $25,000 in costs.

The applicant, a unit owner, challenged several provisions of the respondent condominium corporation's By-law No. 7 concerning rental activities, arguing they were ultra vires or unreasonable.

The court found that the condominium had the power to oversee rental activities, charge rental management and amenity fees, collect damage deposits, and limit tenant occupancy.

However, the court struck down restrictions on advertising and requiring owners to use only Board-approved rental managers as unreasonable infringements on property rights.

The plaintiff developer sued the condominium corporation and its individual directors for oppression and intentional interference with contractual relations, alleging they exaggerated construction deficiencies and implemented restrictive rules.

The defendants moved to strike the claims against the individual directors.

The court granted the motion, finding the claims were undifferentiated and lacked the necessary material facts to support personal liability against the directors.

The claims were struck without leave to amend.

Aviva Insurance sought a declaration that Intact Insurance was obliged to defend Deejah Braithwaite and Lynda Williams in a motor vehicle accident action.

The core issue was the applicability and validity of an Excluded Driver Endorsement (OPCF 28A) signed by Deejah and Lynda.

The court found that Lynda Williams was aware Deejah remained an excluded driver and that the EDE applied to the vehicle involved in the accident, despite it being acquired after the EDE was signed.

The court also found substantial compliance with the Insurance Act regarding the EDE and that any non-compliance did not vitiate the contract.

The application was dismissed, and Intact Insurance was not obliged to defend.

The defendants, individual principals of Times Group corporations, brought a motion under Rule 21.01(1)(b) to strike out the plaintiff condominium corporation's claim against them personally for construction deficiencies, arguing it disclosed no reasonable cause of action.

The court found that most claims (breach of contract, negligent/fraudulent misrepresentation, breach of fiduciary duty, and Building Code breaches) were not sufficiently particularized to establish personal liability distinct from the corporations, as they described actions within the principals' ordinary corporate duties.

These claims were struck without leave to amend.

However, the oppression remedy claim was struck with leave to amend, as the court acknowledged its potential as a personal remedy if properly pleaded with specific allegations against individual directors.

Following the dismissal of the plaintiffs' motion for summary judgment, the court issued a costs endorsement.

The parties had agreed at the hearing that the successful party would receive $25,000 in costs on a partial indemnity basis.

The court found no reason to depart from this agreement and awarded $25,000 in costs to the defendants.

The plaintiffs brought a motion for summary judgment seeking a declaration that they validly rescinded a franchise agreement under the Arthur Wishart Act due to deficient disclosure, and claiming rescission damages of $228,611.83.

The defendants argued that adequate disclosure was provided and that the plaintiffs did not rely on the allegedly missing documents.

The court found that there were genuine issues requiring a trial due to significant conflicts in the evidence regarding what documents were provided and when, and whether the plaintiffs were deprived of the opportunity to make an informed investment decision.

The motion for summary judgment was dismissed.

An appeal concerning the validity of an excluded driver endorsement in an automobile insurance policy.

The insured's driver's license was suspended, and she arranged insurance with the respondent on the basis that she would be an excluded driver.

After her license was reinstated, she drove the vehicle and had an accident.

The appellant, the injured parties' uninsured motorist carrier, sought a declaration that the insured was fully covered, arguing the excluded driver endorsement was void because it was not in a form pre-approved by the Superintendent of Financial Services under section 227(1) of the Insurance Act.

The court held that non-compliance with section 227(1) is a matter for the superintendent, not the courts, and that the use of an unapproved form does not necessarily invalidate the contractual agreement between the parties regarding exclusion from coverage.

The appellant, an Ontario resident, was injured in a motorcycle accident in British Columbia while a passenger on a motorcycle driven by an Alberta resident.

The appellant sued the driver, his insurer, and her own Ontario insurer in Ontario.

The driver successfully moved to stay the action against him for lack of jurisdiction.

On appeal, the appellant argued her Ontario insurance contract, which required her to sue her insurer in Ontario, was a presumptive connecting factor giving Ontario jurisdiction over the entire dispute.

The Court of Appeal dismissed the appeal, affirming that an insurance contract is not a presumptive connecting factor over an extra-provincial tortfeasor, and declined to apply the forum of necessity doctrine as the appellant could pursue her claim in British Columbia.

Following reasons for decision after a trial of specific issues concerning alleged smoke migration into a condominium unit and alleged breaches of repair and maintenance obligations under the Condominium Act, the court addressed the appropriate costs award.

Although the substantive issues had been decided in favour of the respondents, the court had provisionally awarded costs to the applicants and invited submissions regarding scale and quantum.

The applicants sought substantial indemnity costs exceeding $64,000, while the respondents argued either for no costs or for limited partial indemnity costs.

The court held that substantial indemnity costs are reserved for rare and exceptional circumstances involving reprehensible conduct and that such circumstances were not present.

Applying proportionality and Rule 57.01 factors, the court fixed partial indemnity costs at $32,500 inclusive of disbursements and HST.

An insurer sought a declaration that its commercial general liability policy issued to a lamp shade manufacturing and importing business did not respond to a personal injury action arising from a forklift accident during the unloading of heavy industrial lathes.

The injured party alleged vicarious liability and occupier’s liability against the insured company.

The court applied the duty to defend test, accepting the allegations in the statement of claim but examining the true nature of the claim and the insured business operations described in the policy declaration.

The evidence showed the accident arose from the operations of a separate company engaged in buying and selling heavy machinery, an activity unrelated to the insured’s lamp shade business.

The court held there was no possibility that the claim fell within the policy’s coverage and therefore no duty to defend.

A retail tenant sought a declaration that its landlord’s insurer owed it a duty to defend a slip‑and‑fall action arising from an icy parking lot outside the tenant’s store.

The lease required the landlord to maintain common areas and to include the tenant as an additional insured under its comprehensive general liability policy.

The insurer argued that some allegations concerned the tenant’s operational conduct and sought to introduce extrinsic evidence about the tenant’s loading practices.

The court held that such evidence was inadmissible because it addressed issues in the underlying action and could prejudice the insured.

On a proper reading of the pleadings, the claim’s true nature was a slip‑and‑fall in a parking lot risk covered by the policy, triggering the insurer’s duty to defend.

The applicant sought reimbursement of defence costs and a declaration that the respondent insurers owed a duty to defend an underlying action alleging damages from an oil spill at a residence.

The dispute turned on the interpretation of a contractors’ pollution liability policy requiring that covered operations commence on or after the retroactive date to trigger coverage.

The court held that the policy language unambiguously tied coverage to the timing of the insured’s operations rather than the pollution incident.

Because the alleged operations occurred before the retroactive date, the insured failed to establish that the claim fell within the grant of coverage.

The application was dismissed and the insurers were found to have no duty to defend.