Julia Vizzaccaro

The respondents, facing multiple class actions related to the manufacture and distribution of opioids over a 20-year period, sought coverage for defence costs from their successive primary and excess liability insurers.

The application judge allowed the respondents to select a single primary insurer to fund the entire defence, permitted the exhaustion of self-insured retentions (SIRs) using payments from other insurers, granted relief from forfeiture for pre-tender defence costs, and required insurers to sign a Defence Reporting Agreement (DRA) to receive privileged defence information.

The Court of Appeal allowed the insurers' appeals in part, holding that defence costs must be allocated on a pro rata time-on-risk basis, that the insureds must exhaust each applicable SIR before an insurer's duty to defend is triggered, and that relief from forfeiture was unavailable for pre-tender costs.

The Court upheld the DRA requirement for insurers seeking to associate in the defence to mitigate reasonable apprehensions of conflict of interest.

This appeal addressed whether two insurers, AIG and Lloyd's, had a duty to defend a mutual policyholder (the City of Timmins) in a progressive property damage claim.

The key issues were the role of "premature" evidence in duty to defend analysis, the interpretation of an "Expected or Intended Injury" exclusion clause, and whether a "crystallizing event" (an AMEC Report) triggered this exclusion.

The Court of Appeal upheld the application judge's decision, finding that the AMEC Report was "premature" evidence and not a "crystallizing event" that would negate Lloyd's duty to defend.

The court affirmed that the underlying claim was based on negligence, not intentional conduct, and therefore the exclusion clause did not apply, triggering Lloyd's duty to defend.

AIG Insurance Company of Canada brought an application seeking equitable contribution from Lloyd's Underwriters towards the cost of defending the City of Timmins in an underlying property damage action.

AIG and Lloyd's provided consecutive liability insurance policies to the City.

Lloyd's denied coverage, arguing the damage was not an 'occurrence' or fell under the 'expected or intended' exclusion due to a preliminary engineering report received by the City.

The court found the engineering report was not definitive enough to crystallize the loss or make the ongoing damage expected or intended.

The court held that the underlying claim raised a mere possibility of coverage, triggering Lloyd's duty to defend, and ordered Lloyd's to pay 50% of the defense costs.

The appellant sought leave to amend his statement of claim to correct a misnomer by substituting the proper defendant after the expiry of the limitation period.

The motion judge refused the amendment.

The Court of Appeal allowed the appeal, finding that the appellant satisfied the "litigation finger test" for misnomer established in Lloyd v. Clark.

The appellant knew the proper defendant but failed to sue the proper party, and the intended defendant knew it was the intended defendant before the limitation period expired.

The court granted leave to amend and awarded costs.

At a case conference, the parties sought directions after their damages experts met ('hot tubbed') and the plaintiffs' expert wished to revise his report based on concessions made.

The defendants opposed, arguing the plaintiffs should bring a formal motion to allow pre-trial cross-examination.

The court held that requiring a formal motion for this procedural issue was inefficient and disproportionate under the Hryniak principles.

Pursuant to Rule 50.13(6), the court granted the plaintiffs leave to deliver an amended expert report without a motion.

Bombardier Transportation Canada Inc. (BTC) sought an interlocutory injunction to prevent Metrolinx (MTX) from terminating a $770 million contract for light rail vehicles (LRVs) due to alleged material default, pending the completion of a mandatory dispute resolution process.

BTC also sought to remove the Engineer, Jeffrey Rankin, for alleged partiality.

The court found that the contract's dispute resolution process applied to MTX's right to terminate for material default.

Applying the RJR-MacDonald test, the court determined there was a serious issue to be tried, BTC would suffer irreparable harm (loss of reputation, future business, supply chain disruption, and employee expertise), and the balance of convenience favored maintaining the status quo.

The court granted the interlocutory injunction, prohibiting MTX from terminating the contract until the Dispute Review Board (DRB) ruled on the default, and ordered the injunction to be nunc pro tunc to stay cure periods.

The issue of the Engineer's impartiality was referred to the DRB.

The appellant appealed a Director's Order regarding waste street sweepings under the Environmental Protection Act.

Following an agreement between the parties, the Environmental Review Tribunal ordered the Director to amend the Order to reflect new completion dates for specific work items.

The City of Mississauga appealed a Director's Order requiring it to take various actions regarding street sweepings delivered to private properties between 2004 and 2011.

The City sought a stay of the Order pending the appeal.

The Director consented to a stay of the items requiring physical investigations and remedial work, but opposed staying the items requiring the City to share information and conduct a forensic audit to identify affected properties.

Applying the RJR-MacDonald test, the Tribunal found no statutory bar to a stay and a serious issue to be tried.

However, the Tribunal held the City failed to demonstrate irreparable harm to its reputation or from potential litigation.

The Tribunal also found the balance of convenience and public interest favoured denying the stay for the disputed items to ensure affected property owners receive proper notice and information.

The stay was granted in part on consent and dismissed for the disputed items.

Following a successful motion, the plaintiff sought costs on a substantial indemnity basis or, alternatively, on a partial indemnity basis.

The self-represented defendant did not provide costs submissions.

The court awarded costs to the plaintiff on a partial indemnity basis, fixing the amount at $2,500.00, payable within 60 days.

The appellants, foreign corporations and an individual, appealed a motion judge's order dismissing their motion to dismiss the action for want of jurisdiction or to stay it on the basis of forum non conveniens.

The respondent municipality sued for breach of contract, fraud, and conspiracy regarding a waste management agreement.

The Court of Appeal upheld the motion judge's finding that the respondent established a 'good arguable case' for jurisdiction based on the pleadings and evidence of agency.

The court also deferred to the motion judge's conclusion that Ontario was the appropriate forum given the torts and contract were connected to the province.