J. Thomas Curry

The Court of Appeal considered when the limitation period for a claim against an unidentified motorist insurer (under s. 265 of the Insurance Act) begins to run, specifically under ss. 4 and 5 of the Limitations Act, 2002.

The motion judge and Divisional Court held that the limitation period does not begin until the insured makes an indemnification claim that the insurer fails to satisfy.

The Court of Appeal affirmed this, holding that a claim against the insurer is "discovered" under s. 5(1)(a)(iii) of the Limitations Act only when the insured knows or ought to know that the insurer's act or omission (failure to indemnify) caused their loss.

The appeal was dismissed, confirming that the plaintiff's claim against TTC Insurance was not statute-barred.

The plaintiffs in a price-fixing class action regarding electrolytic capacitors moved for court approval of a $5.9 million settlement with the Panasonic defendants, as well as approval of class counsel fees and disbursements.

The court found the settlement, which included significant cooperation from the settling defendants, to be fair, reasonable, and in the best interests of the class.

The court also approved the retainer agreements and the requested class counsel fees of $1,487,500 (25% of the settlement) and disbursements of $141,866.96, noting the complexity and risk of the litigation.

This complex motion involved the defendants, Dr. Saad and the Canadian Companies, seeking to set aside ex parte Mareva injunctions, Norwich orders, and receivership orders previously granted to the plaintiffs.

The defendants argued material non-disclosure by the plaintiffs, particularly regarding the political motivations behind the litigation and the legitimate commercial relationships between the parties.

The plaintiffs sought to continue and vary the orders.

The court found no material non-disclosure sufficient to set aside the Mareva order against Dr. Saad, continuing it.

However, the Norwich and Receivership orders against the Canadian Companies were set aside due to non-material but impactful non-disclosure that changed the factual landscape, making the orders overly broad.

The court also addressed the application of the deemed undertaking rule for documents obtained through Norwich orders.

The appellants (Fasco) appealed a motion judge's decision to strike their defences to claims for contribution and indemnity by the respondent (Venmar) based on res judicata and abuse of process.

The underlying dispute involved two separate house fires, six years apart, both allegedly caused by a defective heat recovery ventilation unit (HRV) manufactured by Venmar, containing a motor manufactured by Fasco.

The motion judge had found that prior Quebec litigation concerning the first fire precluded Fasco from raising certain defences in the Ontario actions.

The Court of Appeal allowed Fasco's appeal, finding that the motion judge erred by not applying the "plain and obvious" test, and incorrectly concluded that the causes of action and issues were identical between the Quebec and Ontario proceedings, particularly given the different factual contexts (e.g., Venmar's evolving knowledge of defects) and the contractual indemnity defence Fasco sought to raise.

The court also noted that the motion judge should have considered the timeliness of Venmar's motion.

The appellant, a unionized employee of the Ontario Public Service, commenced a civil action against her employer and union alleging workplace discrimination and harassment.

The motion judge dismissed the action for lack of jurisdiction, finding that the essential character of the dispute arose from the collective agreement and was therefore within the exclusive jurisdiction of a labour arbitrator or the Human Rights Tribunal of Ontario.

On appeal, the appellant argued that section 46.1 of the Human Rights Code granted the court concurrent jurisdiction.

The Court of Appeal dismissed the appeal, affirming that section 46.1 does not override the exclusive jurisdiction of labour arbitrators where the dispute arises from a collective agreement and no independent civil wrong is pleaded.

The applicant licensor sought declarations that the respondent licensee breached a License Agreement, Sublease, and Loan Agreement for a cannabis retail store, justifying termination.

The respondent counter-applied for a $2,000,000 Branding Fee and damages for wrongful termination.

The court found that the applicant's termination was invalid and breached the duty of good faith, as it was based on a mere expression of frustration by the respondent after being given incorrect information about loan funding.

The court ordered the applicant to pay the Branding Fee, net of certain deductions, and awarded costs to the respondent.

In a costs decision following a professional liability trial, the court determined that the defendants were the successful parties despite findings that they breached their fiduciary duties.

The plaintiffs had sought over $16 million in damages but were only awarded $2,000 in nominal damages.

The court found the defendants' claimed costs of $1,261,235 to be reasonable, but reduced the award by 25% to reflect the court's finding of breach of fiduciary duty.

The plaintiffs were ordered to pay $925,000 in partial indemnity costs.

The plaintiffs sued their former law firm and former in-house counsel for professional negligence and breach of fiduciary duty arising from a commercial transaction and subsequent settlement.

The court found that the former in-house counsel breached his fiduciary duty by acting for the opposing party at a mediation, and that the law firm breached its standard of care by failing to warn the plaintiffs of this conflict.

The court also found the law firm breached its fiduciary duty by obtaining an ineffective conflict waiver.

However, the court concluded that these breaches did not cause the plaintiffs' claimed business losses, as the plaintiffs would have settled regardless and suffered no loss of chance.

The court awarded nominal damages of $2,000.

The appellants appealed an order granting the plaintiff leave to amend her Statement of Claim to add the TTC Insurance Company Limited as a defendant.

The appellants argued the claim was statute-barred under the Limitations Act, 2002.

The Divisional Court dismissed the appeal, agreeing with the motions judge that the limitation period for an indemnification claim does not begin to run until a demand is made and the insurer fails to satisfy it, following the Markel line of authorities.

The Town of Oakville sought to designate Glen Abbey golf course as a cultural heritage property.

Clublink, the owner, applied under section 34 of the Ontario Heritage Act to demolish and remove the golf course.

The Town argued the application should proceed under section 33, which provides different procedural protections and appeal routes.

The central issue was whether a golf course constitutes a "structure" within the meaning of section 34.

The Court of Appeal held that Glen Abbey, being a product of significant construction and engineering comprising constituent parts intended to remain permanently on the property, was a structure within section 34.

The purposive and contextual interpretation of the statute, considering its legislative history and the evolution of municipal heritage planning beyond a "building-centric" paradigm, supported this conclusion.

The applicant, Clublink, owned the Glen Abbey Golf Course in Oakville and sought to redevelop it into a residential and mixed-use community.

The Town designated Glen Abbey as a cultural heritage property and passed five related by-laws, including a Cultural Heritage Landscape Conservation Plan By-law, authorizing the preparation of a conservation plan that required Clublink to seek Town approval for alterations to the golf course.

The application judge quashed all five by-laws and the conservation plan, finding them ultra vires, passed in bad faith, and void for vagueness.

The Court of Appeal allowed the appeal in part, upholding the validity of the five by-laws but quashing the conservation plan resolution on the basis that it effectively compelled Clublink to continue operating the golf course as a service, contrary to section 11(8)5 of the Municipal Act.

The appellants appealed a Master's decision allowing the respondents to select the appellants' in-house counsel as their representative for examination for discovery.

The in-house counsel also had carriage of the fraud action on behalf of the appellants.

The Superior Court of Justice allowed the appeal, finding that while in-house counsel are not shielded from discovery, requiring counsel of record to attend would be oppressive as it would inevitably prevent him from continuing as counsel, thereby interfering with the appellants' choice of counsel.

The respondents were ordered to select another representative.

The law firm Chitiz Pathak LLP appealed a Master's decision that found "special circumstances" existed to allow Bee Vectoring Technology Inc. to have two sets of legal accounts assessed under the Solicitors Act, despite being outside the statutory time limits or having been paid.

The Master had found special circumstances for the first and second qualifying transactions but not for general corporate matters.

The law firm argued the Master erred in principle by accepting the client's reasons for delay (being too busy and fear of jeopardizing the relationship) as special circumstances.

The court dismissed the appeal, finding no error in principle or palpable and overriding error in the Master's fact-specific inquiry into special circumstances.

The appellants appealed a motion judge's decision enforcing a contingency fee agreement provision requiring them to join in an application under section 28.1(8) of the Solicitors Act for court approval of the inclusion of a percentage of legal costs paid to them as part of the solicitor's contingency fee.

The appellants argued that the provision was unenforceable and that they should have been permitted to oppose the application on the grounds that exceptional circumstances did not exist.

The Court of Appeal upheld the motion judge's decision, holding that the provision was enforceable and that the appellants were required to support the application.

The court also found that exceptional circumstances existed justifying the payment.

Following the dismissal of the plaintiff's summary judgment motion, the successful defendant sought partial indemnity costs of approximately $255,000.

The plaintiff argued the costs should be reserved to the trial judge as the motion's efforts would reduce trial preparation.

The court rejected reserving all costs, noting the motion should not have been brought, but recognized that some work would be useful for trial.

The court issued a hybrid costs order: $100,000 payable forthwith, $77,500 payable in any event of the cause, and $77,500 payable in the cause.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages related to their exclusion from the 2016 Olympic Games.

The defendants brought Rule 21 motions to dismiss or permanently stay the proceeding for lack of jurisdiction and abuse of process, and to strike the statement of claim against McLaren.

The court found that resolving the jurisdictional issues would require extensive fact-finding, including assessing conflicting expert opinions and credibility, which exceeds the scope of a Rule 21 motion.

Consequently, the Rule 21.01(3) motions were ordered to be reconstituted as Rule 20 summary judgment motions or a trial of issues, and McLaren's Rule 21.01(1)(b) motion was deferred.

The plaintiff brought a motion for summary judgment against the defendant for over $25 million USD in a complex action involving allegations of breach of contract and conspiracy.

The court dismissed the motion, finding a surfeit of genuine issues requiring a trial, including highly contested facts regarding pre-contract representations, alleged collusion, and the interpretation of multiple contracts created in a convoluted factual nexus.

The court concluded it would not be in the interests of justice to decide the action summarily.

A lawyer appealed a professional misconduct finding based on in-court incivility during a securities prosecution.

The majority held that reasonableness review applied and accepted the disciplinary framework, but found its application unreasonable on the record.

The Court concluded the allegations were made in good faith with sufficient factual foundation in context.

The appeal was allowed and the complaints were dismissed.

The appellant appealed a Master's order refusing to set aside a Registrar's administrative dismissal of his civil action under Rule 48.14(1).

The Divisional Court found that the Master erred in law and made palpable and overriding errors of fact by incorrectly applying the test for setting aside an administrative dismissal.

Specifically, the Master failed to consider all factors, such as promptness and prejudice, and ignored certified information provided by counsel in a Simplified Procedure motion form.

The appeal was allowed, the Master's order was set aside, and the action was ordered to be set down for trial.

The applicants sought leave to appeal and appeal two commercial arbitration awards concerning Cogeco's breach of Wide Area Network (WAN) agreements.

The Arbitrator had applied damages caps and denied specific performance.

The court denied leave to appeal, finding that the applicants' grounds raised questions of mixed fact and law, not pure questions of law as required by the Arbitration Act.

The court also found the Arbitrator's decisions to be reasonable on the merits, upholding the application of damages caps and the denial of specific performance due to the applicants' failure to demonstrate the absence of a readily available substitute service.