Jeffrey Wayne Galway

Appeal from summary judgment in a life insurance coverage dispute arising after the insurer denied a beneficiary's claim based on an alleged change in insurability between the insured's application and delivery of the policy.

The Court of Appeal held that s. 180(1)(c) of the Insurance Act creates a condition precedent to contract formation and is not subject to the two-year contestability limitation in s. 184(2).

The court rejected both the argument that s. 180(1)(c) operates only prospectively and the argument that the policy's incontestability clause ousted the statutory requirement.

The appeal was allowed, the summary judgment set aside, and the parties were left to determine how to litigate the insurability issue.

The appellant vendor breached agreements of purchase and sale for two development properties.

The trial judge awarded the respondent purchaser $15.5 million in damages based on lost development profits, rejecting the appellant's argument that damages should be limited to the difference between the contract price and the resale price to a third party.

The trial judge also found the respondent did not fail to mitigate its damages when its affiliates purchased other properties.

The Court of Appeal dismissed the appeal, holding that the trial judge did not err in accepting the lost development profits approach endorsed by both parties' experts, as it appropriately measured the specific economic opportunity lost.

The Court also upheld the finding that the affiliates' purchases were independent transactions that did not mitigate the loss.

The plaintiff sought approval of a $7 million settlement and class counsel fees in a class proceeding against an insurance company regarding the performance of an investment fund.

The action, which spanned 20 years, involved claims of breach of contract and negligent misrepresentation.

The court found the settlement to be fair, reasonable, and in the best interests of the class, given the significant litigation risks.

The court also approved class counsel's 30% contingency fee, noting the high risks undertaken and the good result achieved for the class.

This class action motion sought approval of a proposed settlement and class counsel fees concerning denied travel insurance claims by TD Home and Auto Insurance Company during the early COVID-19 pandemic, specifically regarding denials based on the availability of non-monetary compensation (credits/vouchers).

The parties reached a settlement of $5.1 million, with $4.8 million available for class members.

The settlement provides $100 for cash-refunded claims and at least 40% of the value for non-cash-refunded claims, allowing class members to retain travel credits.

The court found the settlement fair, reasonable, and in the best interest of the class, noting the risks of litigation and the absence of objections.

Class counsel's request for fees, based on a 21.5% contingency rate (reduced to 17% for the class after defendant's contribution), was also approved as fair and reasonable, proportionate to the settlement size, and reflecting the work and risks undertaken.

The plaintiff brought a class action alleging that the defendant insurer wrongfully deprived insureds of trip cancellation benefits by offering non-monetary compensation such as credits or vouchers.

On consent, the court certified a single threshold common issue regarding the interpretation of the travel insurance policy and dismissed the claim against the parent bank.

The court found that certifying a single threshold common issue, with the possibility of further common issues later, was an efficient procedure akin to a Rule 21 motion.

At a case conference in a proposed class action regarding denied trip cancellation benefits due to COVID-19, the court determined the sequencing of a proposed Rule 21 motion by the defendant bank and the plaintiff's certification motion.

The court held that hearing the Rule 21 motion prior to certification would not substantially narrow the issues, as the substantive claims against the co-defendant insurer would remain identical.

Exercising its discretion under section 12 of the Class Proceedings Act, the court ordered the Rule 21 motion to be heard at the same time as the certification motion.

The defendants brought a motion to strike the plaintiffs' claims for constructive dismissal, wrongful dismissal, discrimination, and bad faith, arguing they were new claims advanced after the limitation period expired.

The plaintiff had originally issued a Notice of Action including these claims, but the subsequent Statement of Claim focused on an independent contractor relationship.

The court found that the original Statement of Claim contained the essential facts giving rise to the cause of action, and the Fresh as Amended Statement of Claim simply asserted different legal conclusions from those facts.

The motion to strike was dismissed.

Appellants brought a proposed class action alleging that respondents conspired to divide the beer market contrary to section 45(1) of the Competition Act through a Framework Agreement signed in 2000, and that a surcharge levied by Brewers Retail on licensees violated the Liquor Control Act.

The motion judge dismissed the action on the basis that the regulated conduct defence was available to the respondents.

The Liquor Control Act authorized the impugned conduct.

The Ontario legislature subsequently enacted retroactive amendments in 2015 to remove any doubt that the conduct was authorized.

The Court of Appeal upheld the dismissal, finding that the regulated conduct defence insulated the respondents from liability and that retroactive legislation could provide authorization for the defence.

A lawyer appealed the dismissal of an application for a declaration that sections 267.5(1) and 280 of the Insurance Act violate the Canadian Charter of Rights and Freedoms.

The application judge found the appellant lacked both private and public interest standing to bring the application.

The Court of Appeal upheld this decision, finding that the appellant failed to demonstrate that the impugned provisions affected him personally and directly, and that his scholarly contributions and representation of affected clients did not establish a genuine interest in the outcome or demonstrate that the application was a reasonable and effective way to bring the issue before the courts.

The appellant insurer appealed an arbitrator's preliminary decision finding that the definition of 'minor injury' and the requirement for documented pre-existing conditions in the Statutory Accident Benefits Schedule (SABS) violated section 15 of the Charter.

The Director's Delegate allowed the appeal, holding that the arbitrator erred by deciding the constitutional questions in a factual vacuum before determining whether the claimant actually suffered from chronic pain or had an undocumented pre-existing condition.

The arbitrator's order was rescinded, and the matter was remitted to arbitration for a determination on the merits of the claim for a psychological assessment.

This addendum corrects an error in a previous costs decision (2018 ONSC 4862) regarding the amount of costs requested by Brewers Retail Inc. The original decision mistakenly stated Brewers Retail requested $600,000 on a partial indemnity basis, when the correct amount, based on an amended bill of costs, was $744,396.42, all inclusive, comprising fees, HST, and disbursements.

The court confirmed the costs award subject to this correction.

Following the dismissal of the plaintiffs' proposed class action on summary judgment, the successful defendants sought costs on a partial indemnity basis totalling approximately $2.3 million.

The plaintiffs and the Class Proceedings Fund argued that the costs should be reduced to $600,000 in the aggregate, asserting that the case was not complex, was in the public interest, raised novel points of law, and that a large costs award would have a chilling effect on class actions.

The court rejected these arguments, finding that the litigation was primarily commercial, involved complex issues, and that the normal costs rules should apply.

The court awarded the defendants their requested costs, subject to a reduction of one expert witness's fee.

In a certified national class action, the plaintiff proposed a notice plan for certification.

The defendant opposed the plan, arguing it was not robust enough to create binding issue estoppels in other jurisdictions, and proposed a more robust direct notice plan at the plaintiff's expense.

The court found that while the plaintiff's plan would normally be adequate, the defendant's concern regarding the recognition of an Ontario judgment by courts in other provinces was valid.

The court approved the defendant's more robust notice plan and ordered the costs to be shared one-third by the plaintiff and two-thirds by the defendant, as the defendant was the predominant beneficiary of the robust plan.

The Ontario Securities Commission approved a settlement agreement with Mackenzie Financial Corporation regarding its failure to comply with mutual fund sales practices under National Instrument 81-105.

Between 2014 and 2017, Mackenzie provided excessive non-monetary benefits to dealing representatives, including expensive golf events, sports tickets, and iPads, and failed to maintain adequate systems of control and supervision.

Mackenzie admitted to the breaches, cooperated with the investigation, and agreed to a reprimand, an independent consultant review, a $900,000 administrative penalty, and $150,000 in costs.

The plaintiff successfully moved for certification of a national class action and sought costs of $69,088.48 on a partial indemnity basis.

The defendant argued the costs should be reduced to $35,000 in fees because it had achieved some success in reducing the class size and shaping the common issues.

The court rejected the defendant's argument, holding that distributive costs awards are generally to be avoided and the defendant's measure of success did not warrant diminishing a fair costs claim.

The court awarded the plaintiff the full amount claimed.

The plaintiff brought a motion to certify a national class action against Lenovo (Canada) Inc. and Superfish Inc. regarding the pre-installation of Visual Discovery software on certain laptop computers.

The plaintiff alleged the software contained a security defect and unlawfully transmitted private information.

The court found that the claims for breach of the implied condition of merchantability, intrusion upon seclusion, and breach of provincial privacy laws satisfied the cause of action criterion.

The court modified the proposed class definition to exclude indirect purchasers and certain computer models, and refined the common issues.

The action was certified as a class proceeding.

This decision concerns a costs award following the dismissal of the applicant's constitutional challenge to sections of the Insurance Act.

The court had previously found the applicant lacked standing and that the challenge failed on its merits.

The applicant argued for no costs, citing public interest, or a reduced award based on public sector salaries of Crown counsel.

The court rejected both arguments, stating that the litigation was speculative and without merit, and that costs for Crown lawyers are not reduced due to their salaried status.

The court fixed costs at $50,000, payable by the applicant to the Province of Ontario, which represented approximately one-third of a reasonable claim.

The applicant, a personal injury lawyer, challenged the constitutionality of sections 267.5(1) and 280 of the Insurance Act, which limit pre-trial recovery of lost income and grant sole jurisdiction to the Licence Appeal Tribunal for Statutory Accident Benefits Schedule disputes, respectively.

The court dismissed the application, finding the applicant lacked both private and public interest standing.

On the merits, the court found no breach of sections 15(1) or 7 of the Charter of Rights and Freedoms, nor a violation of section 96 of the Constitution Act, 1867, as the impugned provisions did not create distinctions based on prohibited grounds, deprive individuals of life, liberty, or security of the person, or usurp superior court jurisdiction for a novel area of law.

The defendant Lenovo brought a motion under Rule 21.01(1)(b) to strike the plaintiff's class action claim in its entirety, arguing that none of the advanced causes of action could succeed.

The plaintiff had initially advanced five causes of action: breach of contract, implied condition of merchantability, intrusion upon seclusion, breach of provincial privacy laws, and negligence (the negligence claim was withdrawn).

The court granted the motion in part, striking the breach of contract claim, but dismissed the motion regarding the claims for implied condition of merchantability, intrusion upon seclusion, and breach of provincial privacy laws, finding them arguable and not plain and obvious to fail.

No costs were awarded due to divided success.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and motion for leave to appeal under the Companies' Creditors Arrangement Act.

The court fixed the costs of the appeal and the motion for leave to appeal at $25,000, inclusive of disbursements and taxes, payable by the appellant union to the respondent.