Lawrence G. Theall

The appellant appealed a decision dismissing its motion to compel the respondent to seek answers and documents from its non-party insurers regarding their participation in a class action settlement.

The Divisional Court dismissed the appeal, finding that the request was overbroad and tantamount to requiring an affidavit of documents from a non-party.

The court held that the proper procedure for seeking such extensive production from non-parties is a motion under Rule 30.10 of the Rules of Civil Procedure.

The defendant, AT Plastics Inc., sought leave to appeal to the Divisional Court from an order dismissing its appeal of a Master's discovery ruling.

The Master had ruled that the plaintiff, IPEX Inc., was not required to answer certain questions or produce documents regarding its insurers' involvement in a prior $125 million class action settlement.

The court found reason to doubt the correctness of the decision, noting that the private insurance exception may have been incorrectly applied as a complete bar to obtaining relevant information from the insurers.

Finding the issue to be of general importance, the court granted leave to appeal.

A receiver appealed from summary judgment dismissing its claim for indemnity under a trustee's errors and omissions policy after obtaining judgment against the insured trustee for breach of trust.

The court held that the insurer was entitled to rely on the dishonest acts exclusion because the trustee deliberately breached the trusts, knowingly exposed the beneficiaries to risk, and misappropriated trust funds for its own benefit.

The court further held that a prior order assigning to the receiver the 'proceeds from insurance coverage' did not assign the insured's separate cause of action for breach of the insurer's duty of good faith.

The receiver also had no direct good faith claim against the insurer, although it could return to the motion judge to seek directions on any other remedy if the insurer had deliberately frustrated the prior order.

The plaintiff appealed a Master's order limiting the cross-examination of the defendant's counsel on his affidavit filed in an undertakings and refusals motion.

The plaintiff argued that by filing the affidavit, the defendant's counsel gave evidence on substantive issues, thereby implicitly waiving solicitor-client and litigation privilege.

The Superior Court of Justice dismissed the appeal, finding that the Master applied the correct legal test and made no palpable and overriding error in concluding that the affidavit did not constitute a waiver of privilege.

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.

Following the certification of a class action on behalf of franchisees against a franchisor, a group of franchisees opposed to the action waged a campaign encouraging others to opt out.

The motion judge invalidated the opt-out notices received after the campaign began, finding the campaign coercive and misleading.

The Court of Appeal allowed the appeal, holding that the motion judge erred in drawing an inference of intimidation without direct evidence and in holding the opposing franchisees to a standard of objectivity.

The communications amounted to acceptable intra-class debate, and the opt-out notices were reinstated.

The plaintiff in a class proceeding moved to quash the appeals of the defendant and non-party franchisees, arguing the order appealed from was interlocutory.

The order in question invalidated certain opt-out coupons but granted those class members a further opportunity to opt out after a final disposition on the merits.

The Court of Appeal held the order was final because it deprived the defendant of a binding judgment against all putative class members and of a limitations defence.

The motions to quash were dismissed.

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.

In a coverage dispute arising from a judgment against a trust company, the defendant insurers sought to introduce additional evidence shortly before the hearing of a summary judgment motion after changing counsel.

The court considered whether the evidentiary record could be reopened to permit new affidavits, discovery answers, and documentary material.

The court held that a late change of counsel does not entitle a party to revise litigation strategy or add evidence contrary to established timetables and prior procedural orders.

Absent a satisfactory explanation for failing to include the evidence earlier, leave should not be granted.

The court permitted only a publicly available judicial endorsement already agreed to by the parties and refused all other proposed additions to the record.

The appellant, Hyundai Auto Canada Corp., appealed a summary judgment requiring it to pay $175,000 to the respondent, Canadian Soccer Association, for breach of a sponsorship agreement.

Hyundai had terminated the agreement without the required 90 days' notice after another sponsor, Tide, withdrew.

The Court of Appeal upheld the motions judge's finding that Tide's continued involvement was not a material term of the contract and that Hyundai was required to provide notice of termination.

The appeal was dismissed.

The appellant onion growers suffered significant crop losses due to onion maggots and sued the manufacturer and seller of the insecticide Dyfonate for breach of warranty and negligence.

The trial judge dismissed the action, finding that the crop failure was caused by unusually cool and dry environmental conditions that delayed the emergence of the maggots, rather than a defect in the insecticide.

The Court of Appeal upheld the trial judge's factual findings and concluded that the respondents provided no express or implied warranties regarding the insecticide's effectiveness under those unusual conditions, nor were they negligent.

The appellants sought to introduce fresh evidence on appeal, specifically a memorandum containing foundational information for the final opinion of an expert retained by the respondents.

A single judge of the Court of Appeal ordered the production of the memorandum under Rule 31.06(3).

The respondents moved to set aside this order.

The Court of Appeal granted the motion, holding that Rule 31.06(3) applies only to the discovery stage of litigation and does not entitle a party to obtain disclosure after trial, especially when the party knew of the expert's final opinion prior to trial but failed to seek discovery of the foundational information at that time.

The appellant insurer appealed a trial judgment finding that the respondent insured's 5R production facility was a separate location under the policy and that only one accident occurred.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the facility was added as a separate location by endorsement.

The Court also agreed that the accidental breakdown continued until the compressor was successfully repaired on the second attempt, meaning there was only one accident.

The appellant appealed a trial judgment dismissing his claims in contract and negligence against the City of Toronto and its officials.

The Court of Appeal found no reversible error, deferring to the trial judge's findings that no contract was formed and that there was no negligence on the part of the City's officials.

The appeal was dismissed with costs.

The appellant manufacturer sought coverage under its comprehensive general liability insurance policy for costs incurred to remedy a defective transformer incorporated into its product.

The motions judge held the loss was caused by an 'occurrence' (defined as an accident) but applied an exclusion clause to part of the claim.

On appeal and cross-appeal, the Court of Appeal held that defective manufacture does not constitute an 'accident' or 'occurrence' under the policy.

The cross-appeal was allowed, and a declaration was issued that the policy did not apply to the claim.

Following the dismissal of the appellants' appeals, the respondents sought costs of $44,648.23 for the appeal, a fresh evidence application, and two motions.

The Court of Appeal found the requested amount excessive, noting the issues involved and that respondents' counsel had acted throughout the Superior Court proceedings.

The Court fixed total costs at $21,500 on a partial indemnity basis.

The appellants appealed two orders of the motions judge.

The first order dismissed their action and struck their defences to the counterclaim due to their failure to post security and pay outstanding costs awards.

The second order granted judgment to the respondents on their counterclaim, declaring them owners of personal property left in a building.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's exercise of discretion to strike the pleadings, and agreeing that the appellants had intentionally abandoned the property pursuant to an agreement.