Joshua Jeremy Arthur Henderson

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

In a class action concerning defective airbag inflators, the plaintiff brought an unopposed motion to lift a stay against Takata Corporation, dismiss the action with prejudice and without costs against Takata Corporation and TK Holdings Inc., and amend the title of proceedings to leave Nissan Canada Inc. as the sole defendant.

The motion followed bankruptcy and civil rehabilitation proceedings in the US and Japan, which were recognized in Canada under the CCAA and released the Takata entities from liability.

The court granted the order as requested.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

The plaintiff requested an urgent motion to strike the defendant's jury notice, arguing that the COVID-19 pandemic would cause a multi-year delay and that jurors taking public transit might be biased against the plaintiff in a claim against the Toronto Transit Commission.

The plaintiff also argued the case was too complex for a jury.

The court declined to schedule the urgent motion, noting that civil jury trials were proceeding in Toronto with social distancing measures, eliminating the delay argument.

The court found the bias argument to be pure speculation and held that any motion to strike based on complexity should be brought before the trial judge using the 'wait and see' approach.

The plaintiffs sought a contempt order against the Tecumseh defendants for failing to produce a representative for examination for discovery as per a prior court order.

The defendants argued that their designated representative, Mr. Goldin, was unable to attend due to a recent cancer diagnosis.

The court found that while the order was clear and known to the defendants, the plaintiffs failed to prove beyond a reasonable doubt that the defendants' non-compliance was intentional, given Mr. Goldin's medical difficulties and the defendants' subsequent efforts to propose alternative solutions.

The motion for contempt was dismissed.

The defendant daycare brought a motion for summary judgment in a negligence action after a three-year-old child broke his arm falling from a play structure.

The court dismissed the motion, finding that the issues of supervision adequacy, staff training, and policy implementation required significant credibility assessments and a highly contextual legal analysis, making the case unsuitable for resolution via summary judgment.

The court emphasized the difficulty of assessing credibility on a paper record, particularly when the injured child could not provide evidence, and declined to order a mini-trial.

The applicant political party brought an application and motion for an interlocutory injunction against the respondent member and his campaigns, alleging unauthorized use of the party's confidential membership list to send emails criticizing the party leader.

The respondents brought a cross-motion to dismiss the application under the anti-SLAPP provisions of the Courts of Justice Act.

The court granted the anti-SLAPP motion, finding that the proceeding arose from expression on a matter of public interest (political debate), the applicant failed to show its claims had substantial merit and no valid defence existed, and the public interest in protecting the expression outweighed the public interest in allowing the proceeding to continue.

The action was dismissed.

The respondents were wholly successful on the appeal and sought partial indemnity costs totaling over $111,000.

The appellants conceded the respondents were entitled to costs but argued the amounts sought were excessive, proposing a total of $30,000.

The Court of Appeal fixed the costs payable by the appellants at $20,000 for Vicentini, $10,000 for Ford Credit, and $10,000 for Personal Insurance, inclusive of disbursements and HST.

The appellants sought a new trial arising from a jury verdict in a child pedestrian personal injury action, challenging evidentiary rulings on vehicle brakes, expert human factors evidence, and the fairness of the defence conducted by counsel appointed by an insurer reserving rights.

The court held the trial judge properly excluded late-disclosed participant expert opinion evidence extending beyond the contemporaneous inspection form, properly admitted unobjected-to accident reconstruction and human factors evidence, and committed no error in charging the jury.

The court also held that any alleged insurer-insured conflict had to be raised promptly before trial and that no unfairness in the defence was demonstrated.

The appeal was dismissed on liability and damages, but the costs order was varied so that trial costs payable to successful defendants were payable only by the litigation guardian personally and in that capacity, not by the minor appellants personally.

The moving party, Advanced Framing Corp., sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment in a simplified procedure action regarding a collapsed riding arena and insurance coverage.

The court applied the test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decisions regarding the test for summary judgment and held that the matters at issue did not raise questions of general or public importance.

The motion for leave to appeal was dismissed with costs.

On a summary judgment motion by a municipality against a developer's crossclaim arising from a winter slip-and-fall, the court held the matter could be fairly and justly resolved without a trial.

The record established on a balance of probabilities that the plaintiff fell on a private driveway rather than on the municipal sidewalk.

In any event, the municipality had not assumed the subdivision roads by by-law at the material time, so no statutory duty or liability under the Municipal Act had attached.

Contractual, nuisance, implied assumption, and by-law based arguments were rejected, and the crossclaim was dismissed.

The appellant, B.C.R. Construction Incorporated, appealed a trial judgment that awarded the respondent damages for breach of a real estate contract and dismissed the appellant's counterclaim regarding restrictive covenants.

The trial judge had found a binding agreement of purchase and sale, awarded damages for the cost differential and relocation of a house, and granted $100,000 in costs to the respondent due to the complexity of the dismissed counterclaim.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, legal conclusions, or costs award.

Following a jury trial in a motor vehicle accident action, the jury awarded the plaintiff $10,000 in general damages but no other damages.

Because the statutory deductible under the Insurance Act exceeded the award, the resulting judgment was effectively zero dollars.

The defendant had previously offered to settle for $5,000, which in practical effect was also equivalent to zero after the deductible.

Both parties sought partial indemnity costs and argued the Rule 49 consequences of the offers to settle.

The court held that both the offer and the trial result were artificially characterized as monetary outcomes when in reality each amounted to zero recovery.

Exercising its discretion under the Rules of Civil Procedure and the Courts of Justice Act, the court ordered that neither party recover costs.

The subcontractor defendant moved for summary judgment dismissing a negligence action arising from the collapse of a partially constructed riding arena.

The subcontractor argued it was an unnamed insured under the owner’s builder’s risk policy and that the policy’s waiver of subrogation barred the insurer’s subrogated claim.

The court held that the evidentiary record was insufficient to determine whether the subcontractor was an unnamed insured and whether the contractual matrix supported a waiver of subrogation.

The absence of evidence regarding contractual risk allocation and the defendants’ own insurance policies created genuine issues requiring a trial.

The motion for summary judgment was dismissed and the claim was permitted to proceed.

The appellant was involved in a motor vehicle accident and sued her insurer.

After the limitation period expired, she sought to amend her statement of claim to explicitly plead an uninsured motorist claim, in addition to an underinsured motorist claim.

The Master allowed the amendment, finding the original claim sufficiently raised the issue.

The Superior Court judge reversed.

The Court of Appeal allowed the appeal and restored the Master's order, holding that the original claim, read generously, reasonably communicated an uninsured motorist claim, and the amendment merely clarified it rather than asserting a new cause of action.

Following a discovery-related motion concerning undertakings and production of Schedule B documents, the court determined the appropriate costs award.

Applying s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the motion and the parties’ settlement offers.

Although the defendant had agreed to disclose some documents prior to the hearing and had answered undertakings promptly, the court found the plaintiffs were ultimately more successful and had been required to bring the motion.

The court exercised its discretion to fix costs payable by the defendant to the plaintiffs.

The parties brought competing motions for summary judgment arising from an oil spill at a residential property allegedly caused when falling ice and debris severed an outdoor fuel oil line connected to a tank installed by one defendant and later visually inspected by another.

The plaintiff alleged negligent installation and inspection in breach of regulatory standards requiring protection of fuel lines from physical damage.

The defendants argued the event was unforeseeable and resulted from the collapse of building components for which the homeowner was responsible.

The court held that the case involved conflicting expert opinions regarding the standard of care and causation.

Applying the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the dispute required the trial process to properly evaluate the competing expert evidence.

The parties brought competing motions for summary judgment arising from an oil spill at a residential property allegedly caused when falling ice and debris severed an outdoor fuel oil line connected to a tank installed by one defendant and later visually inspected by another.

The plaintiff alleged negligent installation and inspection in breach of regulatory standards requiring protection of fuel lines from physical damage.

The defendants argued the event was unforeseeable and resulted from the collapse of building components for which the homeowner was responsible.

The court held that the case involved conflicting expert opinions regarding the standard of care and causation.

Applying the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the dispute required the trial process to properly evaluate the competing expert evidence.