Lawrence G. Theall

This decision concerns the interpretation of an insurance policy following a flood at the City of Thunder Bay’s wastewater pollution control plant.

The central issue was whether increased repair costs required by building code upgrades were subject to a $10 million sub-limit.

The court found that the policy was unambiguous and that the sub-limit applied to all code compliance costs, rejecting the City’s argument that broader coverage was available.

The court also addressed costs, awarding the insurers $25,000.

The appellant sought to certify a class action against the municipality for property damage caused by pinhole leaks in copper plumbing, allegedly resulting from the addition of sodium hydroxide to the municipal water supply.

The motion judge certified the negligence claim but struck the nuisance claim, finding it barred by s. 449 of the Municipal Act, 2001, which precludes nuisance claims related to the escape of water from water works.

The Court of Appeal upheld the decision, agreeing that the nuisance claim was plainly and obviously barred by the ordinary meaning of the statute.

The Court also dismissed the appellant's argument that a breach of contract claim should have been certified, as it was not argued before the motion judge.

This appeal addressed whether relief from forfeiture is available to an insured under a professional liability insurance policy when the claim was not reported to the insurer during the policy period.

The Court of Appeal affirmed the application judge's finding that the policy was a "claims made and reported" policy, meaning that reporting the claim within the policy period was a condition precedent to coverage.

As coverage was not triggered due to the late reporting, relief from forfeiture was not available.

The court clarified that the principle from *Stuart v. Hutchins* remains undisturbed by *Kozel v. Personal Insurance Co.*, maintaining the distinction between non-compliance with a condition precedent and imperfect compliance.

The appellant insurer appealed a decision that found it had a duty to pay defence costs for the respondents in underlying lawsuits.

The insurer had denied coverage based on alleged material misrepresentation in the insurance application regarding the source of financing for the respondents' real estate development companies.

The Court of Appeal found that the failure to disclose syndicated mortgages as the financing source constituted a material misrepresentation by omission, triggering an exclusion clause in the D&O insurance policies.

The appeal was allowed, and the insurer was declared to have no duty to pay defence costs and was entitled to recover previously advanced funds.

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 concerned a motion judge's order regarding a class action.

The core issues were whether a discontinued cause of action and defendants could be added to an existing class action (the Martin action) and whether that action would then be governed by the old Class Proceedings Act, 1992, or the amended Act.

The motion judge had ordered the "recast" Martin action to proceed under the amended Act and denied leave to add a party (MicroPort Orthopedics Inc.) based on limitations.

The Court of Appeal found that the motion judge erred in ordering the Martin action to be governed by the amended Act, as Section 39 of the amended Act clearly dictates that actions commenced before October 1, 2020, remain under the old Act.

The court also found an error in dismissing the motion to add MicroPort Orthopedics Inc. based on the Limitations Act, stating that limitation periods are typically individual issues in class actions.

The appeal and cross-appeal were allowed in part, clarifying that the Martin action continues under the old Act, and a re-filed Rowland action (including MicroPort Orthopedics Inc.) would proceed under the amended Act.

The plaintiff brought a motion to certify a class action against the City of Thunder Bay for negligence and private nuisance, alleging that the City's addition of sodium hydroxide to the municipal water supply caused pinhole leaks in copper plumbing pipes, resulting in property damage.

The City brought a cross-motion to strike the nuisance claim, arguing it was barred by s. 449 of the Municipal Act, 2001, which provides immunity for nuisance claims connected to the escape of water from water works.

The court granted the City's motion to strike the nuisance claim, finding it was plainly and obviously barred by the statute.

The court granted the plaintiff's motion to certify the negligence claim, finding it met all the criteria under the Class Proceedings Act, 1992.

The applicants sought a declaration that the respondent insurer had a duty to defend them in an underlying action alleging misappropriation of funds from syndicated mortgages.

The insurer had denied coverage, arguing the applicants made a material misrepresentation in their insurance application regarding their source of financing.

The court found that the email relied upon by the insurer lacked detail and precision, and the insurer failed to clarify the ambiguous answers.

The court concluded there was no misrepresentation and ordered the insurer to resume defending the applicants and pay their incurred defence costs on a full indemnity basis.

The defendants Mercedes-Benz and Mitsubishi brought a motion to dismiss the proposed class action for delay pursuant to s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs argued that the court had discretion not to dismiss the action and that all defendants must join the motion.

The court held that s. 29.1 is mandatory and does not require all defendants to join.

The action was dismissed against the moving defendants, but the court exercised its jurisdiction under s. 12 to order that the dismissal be set aside if the plaintiffs file a complete certification motion record within thirty days.

The Applicants sought costs following a partial success in an application concerning insurance coverage, specifically the duty to defend and equitable allocation among insurers.

The court awarded full indemnity costs to the Applicants against AIG and Royal & Sun Alliance Insurance Company of Canada (RSA) for the duty to defend issue, finding the Applicants overwhelmingly successful on that point.

Costs related to the exhaustion of self-insured retentions (SIRs)/deductibles were deferred to a future trial of the issue, as neither party fully succeeded.

Zurich Insurance Company Ltd. was ordered to pay reduced costs due to its partial success on a specific "Single Retention Endorsement" interpretation.

This motion addressed whether a main action and a third-party action, stemming from a property dispute involving an encroaching structure, should be heard concurrently or sequentially.

The Plaintiffs sought a combined hearing, while the Defendants and Third Parties preferred separate proceedings.

The court, emphasizing judicial efficiency and fairness, determined that the intertwined factual and legal issues, particularly concerning the appropriate equitable remedy for the admitted trespass and the allocation of financial responsibility among all parties, necessitated a single, consolidated trial.

The motion for concurrent hearings was granted to avoid multiplicity of actions and the risk of inconsistent findings.

The plaintiff municipality sought a declaration that its insurers had a duty to defend it in relation to a Director's Order issued by the Ministry of the Environment and Climate Change regarding environmental contamination.

The defendant insurers brought a Rule 21 motion to determine whether the Director's Order constituted a 'civil action' under their respective liability policies.

The court held that a regulatory proceeding, including an appeal of a Director's Order to the Environmental Review Tribunal, is not a 'civil action' as defined by the Rules of Civil Procedure or the Courts of Justice Act.

Consequently, the insurers had no duty to defend the municipality.

The applicant sought to set aside an arbitration award, alleging the arbitrator breached the rules of natural justice and exceeded his jurisdiction.

The applicant argued the arbitrator unfairly denied an adjournment, admitted new expert evidence, altered the definition of disputed software, and improperly relied on a draft award provided by the respondent.

The applicant also contended the arbitrator lacked jurisdiction to grant injunctive relief against non-parties.

The Superior Court of Justice dismissed the application, finding no procedural unfairness or jurisdictional error, and ordered the recognition and enforcement of the arbitral award.

The applicant sought to determine whether an order granting a conditional stay of enforcement of an arbitration award was final or interlocutory, as this determination established jurisdiction.

The arbitration concerned ownership of software, with the arbitrator awarding ownership to the respondent, granting injunctive relief, and ordering costs exceeding $1.5 million.

The applicant commenced an application to set aside parts of the award.

The application judge granted a conditional stay of enforcement pending the disposition of the application, conditioning the stay on monthly payments of $25,000.

The court determined that the stay order was interlocutory because the merits of the underlying application remained to be determined and the matter was pending under the relevant statutory provisions.

The third party plaintiffs, who installed septic systems in a residential subdivision, were sued by the builder after 35 systems failed and had to be replaced due to non-compliant filter sand.

After settling the main action, the installers brought a third party claim against the aggregate supplier who provided the filter sand, alleging breach of contract and negligence.

The court found the supplier breached an implied warranty of fitness under section 15 of the Sale of Goods Act because the sand did not meet Ontario Building Code specifications.

The court awarded the installers their settlement costs and legal fees as damages, but apportioned fault, reducing the damages by 16.5% to account for the installers' own design and installation errors.

The negligence claim was dismissed due to a lack of expert evidence establishing the standard of care for manufacturing filter sand.

The plaintiff, IPEX Inc., settled numerous class actions related to its defective Kitec Pipe.

IPEX then sued its resin suppliers, AT Plastics Inc. and Lubrizol Advanced Materials Inc., for breach of contract and indemnity, seeking to recover the settlement amount.

The defendant suppliers brought motions for partial summary judgment, arguing that IPEX could not prove causation without individual claims data.

The court dismissed the defendants' motions, finding that IPEX could plausibly establish causation for its breach of contract claim without individual data, and that the tort claim should proceed to trial alongside the contract claim to avoid bifurcation and inconsistent findings.

The court also found that the reasonableness of the settlement and the assignment argument were not suitable for summary judgment.

Following a successful summary judgment motion dismissing the action against a hospital in a medical malpractice proceeding, the court addressed costs.

The hospital sought recovery of its costs for both the summary judgment motion and the broader action.

The court considered whether a Bullock or Sanderson order was appropriate and the impact of a co-defendant physician’s refusal to admit a key factual issue relating to nursing care.

Exercising discretion under Rule 57.01(1)(g) of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, the court held that the physician’s refusal to admit the fact necessitated the motion and justified shifting the hospital’s costs to him.

The hospital’s costs were fixed for the motion, the action, and the costs hearing.

The plaintiff, acting as receiver, obtained a judgment against a trust company for breach of trust.

The plaintiff then brought an action against the trust company's insurer to satisfy the judgment and moved for summary judgment.

The court found that the plaintiff had standing to sue the insurer based on an assignment of the right to sue, rather than under section 132(1) of the Insurance Act.

While the court determined that the policy initially provided coverage for the breach of trust, it ultimately held that coverage was excluded under policy provisions relating to dishonest acts and the gaining of an illegal advantage.

The court also found that the insurer's duty of good faith to the insured had been assigned to the plaintiff, leaving the issue of whether that duty was breached for trial.

Following a successful motion setting aside opt-out notices in a class proceeding, the court determined the appropriate costs award.

The moving party sought costs after establishing that the opt-out process had been corrupted by a coordinated campaign that undermined the integrity of the class action.

The respondents argued for no costs or for their own recovery, relying on allegations that certain claims had been withdrawn and that the motion raised novel issues.

The court held that the motion was critical to preserving the integrity of the opt-out process and that the moving party was substantially successful.

Costs were fixed at $60,000, payable jointly and severally by the defendant and the respondent franchisees.

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.