John Cannings

The appellant, Sky Solar, appealed an arbitration award dismissing its claim for indemnification against the respondent, Marnoch, for losses resulting from fires caused by failed electrical transformers.

The arbitrator found that Marnoch was not liable under the contractual warranties because Sky Solar had chosen the transformers and did not rely on Marnoch's skill and judgment.

The Superior Court of Justice applied the reasonableness standard of review and upheld the arbitrator's decision, finding no extricable errors of law and concluding that the arbitrator's interpretation of the contract and decision not to determine the liability of a non-party manufacturer were reasonable.

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.

Following a successful application declaring a contingency fee agreement void and ordering repayment of funds, the court determined the appropriate costs award.

The successful party sought partial indemnity costs exceeding $22,000.

The court held that costs awards must reflect a fair and reasonable contribution rather than an exact reimbursement of actual legal fees and considered the expectations of the unsuccessful party under r. 57.01 of the Rules of Civil Procedure.

Finding the claimed hourly rate, allocation of discovery time, and counsel fee for a half‑day motion excessive, the court reduced the award and fixed costs at $10,000 plus HST.

The applicant sought a declaration that a contingency fee agreement with her former lawyer was unenforceable because it permitted the lawyer to charge a percentage on costs recovered through settlement.

The agreement calculated the lawyer’s contingency fee on the entire settlement amount, including costs and disbursements, without obtaining prior judicial approval as required by s. 28.1(8) of the Solicitors Act.

The court held that including costs in a contingency fee agreement without judicial approval constitutes a fundamental breach of the statutory scheme.

Because the agreement contravened s. 28.1(8) and was not approved as required by s. 28.1(9), it was unenforceable.

The lawyer was ordered to repay the portion of the fee calculated on costs, while the broader question of fee reasonableness was left to the trial judge in the related tort action.

The plaintiff brought a motion to amend the statement of claim to add the vehicle owner as a defendant after the expiry of the limitation period following a motor vehicle accident.

The proposed defendant opposed the amendment, arguing that the limitation period had expired and that the plaintiff had not exercised due diligence to discover the proper owner earlier.

The court considered the discoverability doctrine under the Limitations Act, 2002 and the amendment provisions of the Rules of Civil Procedure.

Although the court noted that the plaintiff’s investigation appeared careless and that obvious steps such as obtaining a police accident report or conducting a vehicle search had not been taken, the evidentiary threshold on a pleadings motion was low.

The court held that the plaintiff provided sufficient explanation to raise a triable issue on discoverability and allowed the amendment, permitting the new defendant to plead a limitations defence.

The defendants brought a motion requiring the plaintiff to post security for costs in a solicitor’s negligence action arising from the dismissal of the plaintiff’s earlier employment and disability benefits lawsuit for delay.

The court applied Rule 56.01 of the Rules of Civil Procedure and found that the plaintiff was ordinarily resident outside Ontario, having lived abroad for extended periods and lacking exigible assets within the jurisdiction.

The plaintiff failed to provide sufficiently detailed financial disclosure to establish impecuniosity and did not demonstrate a good chance of success on the merits of the negligence claim.

The court also considered fairness to both parties given the overlapping proceedings and litigation history.

Security for costs was ordered in the amount of $40,000 on a partial indemnity basis up to the completion of examinations for discovery.

The defendant brought a summary judgment motion seeking dismissal of a personal injury action as statute‑barred under the two‑year limitation period in the Limitations Act, 2002.

The defendant argued the claim was discovered on the date of the motor vehicle accident.

The court considered the interaction between the discoverability rule and the threshold requirements under s. 267.5(5) of the Insurance Act, which require proof of permanent serious impairment or disfigurement before liability arises.

Relying on expert evidence indicating that permanence of the injuries could not reasonably be assessed shortly after the accident, the court held that discoverability of the claim depended on when the permanence of the injuries could be determined.

Given the limited evidentiary record and absence of defence expert evidence, the court found that the plaintiff had a reasonable chance of proving discoverability at trial.

The summary judgment motion was therefore dismissed.