Kevin P. Nearing

Following a trial in which the plaintiff's life insurance claim was dismissed on a strict application of the law, the defendants sought costs fixed at $45,000.

The plaintiff was self-represented and had already suffered the death of her common-law partner and financial hardship resulting from the unsuccessful claim.

The court held that although the defendants' counsel conducted the case professionally and costs would ordinarily have been awarded, the circumstances were sufficiently tragic to justify departing from the usual rule that the successful party receives costs.

Exercising its discretion, the court declined to award any costs.

The plaintiff sought payment of $97,500 under a credit line life insurance policy following the death of her common‑law partner.

The insurers denied coverage on the basis that the insurance application contained material misrepresentations regarding the insured’s medical history and a prior life insurance application within the two‑year contestability period.

The court found the application contained inaccurate answers to clear health and underwriting questions and accepted expert underwriting evidence that the insurance would have been declined had accurate information been disclosed.

Applying s. 184(3) of the Insurance Act and established principles requiring full disclosure and utmost good faith in insurance contracts, the court concluded the insurer was entitled to void the coverage.

The claim was therefore dismissed.

Following a nine‑week jury trial arising from a motor vehicle accident, the plaintiffs obtained a damages award substantially lower than the amount claimed.

The defendants relied on Rule 49.10(2) of the Rules of Civil Procedure and argued they were entitled to partial indemnity costs from the date of a pre‑trial offer to settle because the judgment was allegedly less favourable than their offer.

The court held that although the offer met the timing requirement, the offer’s treatment of prejudgment interest on a lump‑sum amount was ambiguous and incapable of precise calculation for mixed heads of damages attracting different statutory interest rates under the Courts of Justice Act.

Because the offer lacked sufficient certainty to trigger the Rule 49 cost consequences, the defendants failed to meet their burden under Rule 49.10(3).

Considering the Rule 57 factors and the circumstances of the litigation, the court awarded the plaintiffs their partial indemnity costs throughout the proceeding.

During a civil jury trial arising from a motor vehicle accident, the plaintiffs sought to exclude the testimony of a defence neuropsychologist regarding neuropsychological testing and symptom validity assessment.

The court applied the admissibility framework for expert evidence from R. v. Mohan and the two‑step reliability analysis from R. v. Abbey.

While the expert’s methodology raised concerns regarding cultural and linguistic validity of standardized tests and the absence of normative data for the plaintiff’s background, the court concluded the opinion met the threshold reliability for admissibility.

To preserve fairness and avoid improper commentary on credibility, the court permitted the expert to testify on testing methodology, behavioural observations, and differential diagnosis but prohibited opinions implying deceit, malingering, or general credibility.

The evidence was therefore admitted subject to strict limits and jury instructions.

The appellants appealed a Master's order granting summary judgment dismissing their action against the respondents.

The action arose from the allegedly defective installation of a hot water heater in their new home, which they claimed caused carbon monoxide exposure and adverse health effects.

On appeal, the appellants argued the Master erred by denying an adjournment, exceeding his jurisdiction, reversing the burden of proof, and applying the wrong legal test for causation.

The Divisional Court dismissed the appeal, finding that the Master correctly applied the law, properly held the moving parties to their burden of proof, and correctly concluded that the appellants failed to present sufficient evidence to establish a genuine issue for trial regarding causation.

The appellants appealed a trial judgment regarding liability and damages for property damage, including flower gardens, an excavated area, and a basement wall.

The respondents cross-appealed on costs.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding ample evidence to support the trial judge's findings of fact, liability conclusions, and damages assessment, and no error in principle in the costs award.

Costs of the appeal were fixed at $25,000 payable to the respondents.

The appellants appealed a summary judgment dismissing their claim for life insurance benefits.

The insurer argued that a diagnosis of cancer was made within the 90-day exclusion period.

The Court of Appeal allowed the appeal, finding that while a diagnosis does not need to be communicated to the patient or made by a treating physician to be effective, the policy specifically defined 'cancer (life-threatening)' to exclude some cancers.

Because the doctor's report did not clearly indicate whether the cancer detected met this definition, a triable issue existed.

The summary judgment was set aside.

The appellant challenged the trial judge's conclusion that a payment did not fall within the language of an integration provision.

The Court of Appeal was not persuaded that the trial judge erred.

The appeal was dismissed with costs to the respondent.

The respondent contractor successfully tendered for a dredging project using a suction method, but later incurred losses when it could not obtain the necessary permits.

The contractor sued the engineering firm that prepared the tender documents and the conservation authority, alleging negligent misrepresentation for failing to warn about the permit requirements.

The Supreme Court of Canada allowed the appeal, holding that an engineer preparing tender documents owes no duty of care to advise prospective contractors about the need for permits or the viability of their chosen construction methods.