Kenneth G. Hood

The third parties brought a motion to dismiss the defendants' third party claim based on an indemnity contract, which was unsuccessful.

The defendants sought costs of $41,041.95, which included an $18,666.50 disbursement for an expert report.

The court found that the expert report played no role in the narrow motion argued and deferred its costs to the trial judge.

Applying the factors under Rule 57.01, the court fixed the defendants' costs for the motion at $15,000 inclusive of disbursements and HST, payable by the third parties.

An employee dismissed without cause brought a summary judgment motion seeking determination of the reasonable notice period for wrongful dismissal damages.

The court applied the Bardal factors including age, length of service, character of employment, and availability of comparable employment.

For a 39‑year‑old employee with 17 years of service whose position had been replaced by automation, the court fixed reasonable notice at 14 months.

Because the motion was decided before the expiry of the notice period, the court addressed the treatment of mitigation and adopted the “trust and accounting” approach, requiring the employee to account for any mitigation income earned during the remaining notice period.

The employee’s mitigation efforts to date were found to be reasonable.

The defendants moved under Rule 21.01 to strike the plaintiff’s claim on the basis that it disclosed no reasonable cause of action and alternatively sought a stay of the action, also alleging violations of the Rules of Civil Procedure governing pleadings.

The plaintiff alleged that lawyers representing her insurer caused financial loss and mental distress by failing to provide settlement funds following a settlement agreement with the insurer.

The court held that opposing counsel owe no duty of care to an adverse party and therefore cannot be liable to that party for negligence, misrepresentation, or alleged misconduct arising from their representation of a client.

As the only pleaded connection between the plaintiff and the defendants was their role as counsel for the insurer, the claim disclosed no viable cause of action.

The court concluded that the deficiency could not be remedied by amendment and struck the claim.

In a motor vehicle accident action, the plaintiff sought damages after a multi-vehicle collision and later moved to add the lessee of a rented vehicle as a defendant after the expiry of the two‑year limitation period.

The added defendant brought a summary judgment motion asserting the claim was statute‑barred.

The court held that the defendant’s failure to oppose the earlier motion to add him as a party did not estop him from raising a limitation defence.

Applying the discoverability provisions of the Limitations Act, 2002, the court found the plaintiff failed to exercise reasonable diligence in identifying the lessee despite knowing the vehicle was rented.

The evidence demonstrated minimal investigative steps within the limitation period.

The action against the lessee was therefore dismissed as statute‑barred.

Following a personal injury action arising from a fitness class accident, the defendants issued a third party claim against the program developer alleging negligent training of the instructor.

The third parties moved for summary judgment relying on a contractual indemnity clause requiring the fitness club to indemnify them for claims arising from activities at the facility.

The court held that indemnity for a party’s own negligence must be expressed in the clearest terms, and the clause relied upon did not meet that standard and was ambiguous.

The court also declined to consider an alternative argument limiting liability because it was not properly pleaded or supported by evidence in the motion record.

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 plaintiffs brought a motion for summary judgment under Rule 20 of the Rules of Civil Procedure seeking to enforce a judgment under s. 258 of the Insurance Act against an insurer alleged to have issued a motor vehicle liability policy to the tortfeasor responsible for a catastrophic 1992 motor vehicle accident.

The plaintiffs relied on circumstantial evidence, including an accident report listing a policy number, licence plate renewal applications, correspondence with insurers, and an affidavit from the tortfeasor’s daughter.

The court held that the evidentiary record was insufficient to establish on a balance of probabilities that the tortfeasor held a motor vehicle liability policy with the alleged insurer at the time of the accident.

Because the existence of such a policy was not proven, the remaining issues concerning assumption of liability, limitation defences, and damages were unnecessary to determine.

The motion for summary judgment was dismissed.

The plaintiff surety brought a motion for summary judgment against an individual defendant based on an indemnity agreement guaranteeing reimbursement for payments made under lien bonds issued for several corporate defendants.

The defendant denied signing the agreement and alternatively asserted the defence of non est factum, alleging she had not understood the nature of the document.

The court found on the evidence, including the testimony of a subscribing witness and the defendant’s cross‑examination, that the defendant had signed the agreement.

The court held the defence of non est factum was unavailable because there was no evidence of misrepresentation and the defendant had been careless in signing documents without inquiry.

Summary judgment was granted for the amount paid under the bonds, while the claim for additional fees and expenses was not granted due to lack of evidentiary support.

The respondent to an application for recognition and enforcement of a foreign arbitral award moved to adjourn enforcement pending the outcome of an annulment proceeding in the originating jurisdiction.

The court considered Articles 35 and 36 of the UNCITRAL Model Law incorporated into the International Commercial Arbitration Act.

Applying the balance of convenience approach developed in Canadian jurisprudence, the court held that only an "issue to be tried" was required and that the possibility of the award being set aside justified a temporary adjournment.

However, given the low likelihood of success in the annulment proceeding and the validity of the award, the court exercised its discretion to require partial security as a condition of the adjournment.

The defendants brought a motion asserting that the plaintiff’s motor vehicle accident claim was statute-barred under the two‑year limitation period tied to the discoverability of a threshold injury under s. 267.5(5) of the Insurance Act.

The court considered whether it was discoverable before January 23, 2010 that the plaintiff had sustained a permanent and serious impairment meeting the statutory threshold following a 2008 accident.

Although the plaintiff had suffered significant symptoms and had consulted numerous medical professionals, the medical evidence did not clearly establish permanence or seriousness prior to that date.

The court held that the available medical reports created a genuine issue requiring a trial regarding discoverability and the limitation defence.

The defendants’ motion was therefore dismissed, leaving the limitation and threshold issues to be determined at trial.

The defendant brought a motion for summary judgment seeking dismissal of a motor vehicle accident claim on the basis that it was statute-barred under the Limitations Act, 2002.

The central issue was when the claim became discoverable under s. 5 of the Act, given the statutory threshold requirement for serious and permanent impairment under s. 267.5(5) of the Insurance Act.

The court held that discoverability required a sufficient body of medical evidence demonstrating that the plaintiff’s injuries met the statutory threshold.

Because the first medical opinion diagnosing serious and permanent impairment arose in June 2010, the claim issued in May 2012 was within the limitation period.

The motion for summary judgment was dismissed and partial summary judgment was granted to the plaintiff dismissing the limitation defence.

In a pedestrian–streetcar collision action, a transit authority brought a summary judgment motion seeking dismissal of the plaintiff’s claim against its municipal co‑defendant.

The moving party argued that it would assume responsibility for maintenance of trees on a median that allegedly obstructed the streetcar operator’s view and relied on statutory provisions of the City of Toronto Act.

The court held that the summary judgment rules could permit a defendant to seek dismissal of a claim against a co‑defendant, but the evidentiary record revealed genuine issues requiring a trial regarding responsibility for the median and trees.

Ownership of the land remained with the municipality and the statutory provision did not bar claims where the property was not the transit authority’s.

The motion was dismissed and costs were awarded to the plaintiff.