Josiah T. MacQuarrie

The respondents were sued following a 2019 fire at their restaurant and issued third party claims for contribution and indemnity against the appellant architect, who had provided services during a 2001 renovation.

The appellant moved under Rule 21 to strike the third party claims, relying on the 15-year ultimate limitation period in s. 15 of the Limitations Act, 2002.

The motion judge dismissed the motion, holding that under s. 18, the ultimate limitation period did not begin to run until the respondents were served with the statements of claim.

The Court of Appeal allowed the appeal, concluding it was premature to decide the limitations defence on a pleadings motion without evidence determining the precise legal nature of the third party claims (whether derivative of duties to the plaintiffs or based on independent duties to the respondents).

The appellant insurer appealed a decision requiring it to defend and indemnify the respondent lessor for an automobile accident involving a leased vehicle.

The vehicle was owned prior to the effective date of the fleet policy but was not listed on the initial schedule.

It was added to a monthly fleet report after the accident occurred.

The Court of Appeal allowed the appeal, holding that under OPCF 21A (c), vehicles owned prior to the policy term but not scheduled require a specific request for coverage, and no retroactive coverage is provided.

Because coverage was never triggered, relief from forfeiture was unavailable.

The applicant, West York Sales and Leasing Inc., sought a declaration that it was entitled to a defence under an automobile liability insurance policy issued by the respondent, The Dominion of Canada General Insurance Company (Travelers Canada).

The dispute centered on whether a specific vehicle was covered by the policy at the time of an accident, given the operation of a monthly reporting fleet endorsement.

The court found that the vehicle was covered, that late reporting did not invalidate coverage, and that any breach of statutory conditions was subject to relief from forfeiture.

The application was granted.

The court considered whether third party claims for contribution and indemnity brought by the defendants against Maurizio Martignano were barred by the 15-year ultimate limitation period under the Limitations Act, 2002.

The court held that, pursuant to section 18 of the Act, the limitation period for such claims commences on the date the defendants were served with the statement of claim, not the date of the original act or omission.

As a result, the third party claims were not statute-barred and the motions to dismiss were denied.

The appellant insurer appealed a declaration that it owed the respondent builder a duty to defend under a commercial general liability policy.

The underlying action involved alleged deficiencies in construction and repairs of a boathouse and cottage.

The insurer argued the policy was occurrence-based and that the property damage was known prior to the policy period.

The Court of Appeal upheld the application judge's decision, finding that the pleadings raised the mere possibility that damage occurred during the policy period, thus triggering the duty to defend.

The appeal on costs was also dismissed, with the court reaffirming that an insurer breaching its duty to defend must pay full indemnity costs incurred by the insured to enforce that duty.

This grouped appeal concerned four applications seeking declarations that the appellant insurers had a duty to defend the respondent corporations against claims of property damage arising from condominium construction deficiencies.

The application judge found a duty to defend based on the "mere possibility" test and refused ex ante allocation of defence costs.

The Court of Appeal dismissed the insurers' appeal, affirming the application judge's findings that the "mere possibility" test applies to exclusions and that courts should not conduct a "trial within a trial" on duty to defend applications.

The court also upheld the order for pre-notification defence costs and dismissed a cross-appeal regarding the assessment of past defence costs.

The defendant brought a motion for a declaration that the plaintiff did not sustain a permanent serious impairment of an important physical, mental or psychological function following a motor vehicle accident.

The court applied the three-part test from Meyer v. Bright and considered the plaintiff's evidence, including testimony from his doctor and family members.

The court found that the plaintiff's impairments were permanent, serious, and substantially interfered with his activities of daily living.

The defendant's motion was dismissed, as the plaintiff met his onus of establishing that his impairments met the statutory threshold.

The applicants, Distillery Parties and Rite-Air, sought declarations that their insurers, Temple Insurance Company and Aviva Insurance Company of Canada, had a duty to defend them under a Specific Project Wrap-Up Liability Insurance Policy.

The insurers denied the duty to defend, arguing that the alleged property damage was below the policy's $10,000 deductible, and thus no coverage was triggered.

The court held that the duty to defend is triggered by the mere possibility of a covered claim, regardless of whether the alleged damages exceed the deductible.

The court also rejected the insurers' request for an ex ante allocation of defence costs, stating that such allocation is premature and must be determined ex post facto based on actual legal expenses for exclusively uncovered claims.

The moving parties brought a motion for leave to appeal.

The Divisional Court dismissed the motion and ordered the moving parties to pay costs fixed at $1,500 to the respondent.

The defendants brought a motion to dismiss the plaintiff's action for delay, pursuant to Rule 24 or Rule 48 of the Rules of Civil Procedure.

The action, concerning roof repairs, was commenced in 2013 and had a history of delays, including cancelled discoveries and being struck from the trial list.

The court determined Rule 48 applied, placing the onus on the plaintiff to provide an acceptable explanation for the delay and demonstrate no non-compensable prejudice.

Despite the plaintiff's "barely acceptable" explanation for dilatory conduct, the court found the action was ready for trial and the defendants failed to prove actual non-compensable prejudice.

The motion to dismiss was denied, and the action was restored to the trial list with peremptory trial dates.

A third party brought a summary judgment motion seeking dismissal of a third party claim brought by a defendant in a construction-related subrogated action following flood damage to a property.

The defendant relied on contractual indemnity provisions to shift liability to the third party.

The court held that the anti-subrogation rule did not bar the third party claim because the defendant was not an insured under the builder’s risk policy.

However, the contractual provisions relied upon did not clearly indemnify the defendant for its own negligence, which must be expressed in the clearest terms.

The third party claim was therefore dismissed on summary judgment.

The appellant tenant sued the respondent landlord for negligence after a fire damaged its leased premises.

The motion judge granted summary judgment dismissing the claim, finding no evidence of the landlord's negligence and holding that expert evidence was required to prove causation.

On appeal, the appellant argued that common sense inferences and the landlord's spoliation of evidence (destroying a space heater) should suffice.

The Court of Appeal dismissed the appeal, agreeing that expert evidence was necessary given the technical nature of the building's electrical system, and noting that an adverse inference from spoliation cannot serve as positive proof of negligence.

The plaintiff brought a motion for summary judgment seeking a declaration that a binding final contract existed between the parties for the creation of visual artwork and that the defendant had repudiated that contract.

The court reviewed extensive conflicting evidence concerning negotiations, correspondence, and the parties’ expectations regarding execution of a formal written agreement contemplated by governing terms of reference.

Although the plaintiff had performed design work and received payment for preparatory efforts, the court found the evidentiary record raised substantial credibility issues and conflicting inferences about whether a final binding contract had been formed.

The court held that these disputes constituted genuine issues requiring a trial and could not safely be resolved on a summary judgment motion.