Angela Papalia

The plaintiffs sought summary judgment for $2.6 million in building replacement costs and $250,000 in business interruption losses after two windstorms damaged their mushroom farm buildings.

The defendant insurer argued that some damage pre-existed the storms and was excluded from coverage, relying on conflicting expert reports.

The court dismissed the motion for summary judgment, finding that the conflicting expert evidence regarding the cause and extent of the damage created a genuine issue requiring a trial.

The court also held that the statutory appraisal process was not appropriate for resolving disputes involving policy interpretation and causation.

The appellant, a third mortgagee, appealed a summary judgment dismissing its action for damages for an alleged improvident sale and for an accounting under s. 27 of the Mortgages Act.

The appellant argued the motion judge applied the wrong test, the sale was improvident, and the second mortgagee was not entitled to add the first mortgage payout to its claim.

The Court of Appeal dismissed the appeal, finding that while the wrong test was applied, the respondent took reasonable precautions to obtain the true market value of the property.

The court also held the respondent was entitled to the payout amount under the doctrine of equitable subrogation.

The appellants were successful on appeal, significantly increasing their recovery from the trial judgment.

The respondent sought costs based on a pre-litigation offer that exceeded the appeal award but was only open for five days.

The court noted the respondent made no Rule 49 offer, while the appellants made three, though for amounts greater than their ultimate recovery.

Given the recovery and the necessity of the appeal, the court awarded the appellants $15,000 inclusive of costs.

The plaintiffs appealed a trial judgment regarding a contract for the construction of a home that was destroyed by fire before completion.

The trial judge found the plaintiffs had terminated the contract and awarded the defendant $100,000 on its counterclaim for lost profits, while awarding the plaintiffs a small net judgment from insurance proceeds.

The Divisional Court upheld the finding that the plaintiffs terminated the contract but found the trial judge erred in calculating the insurance trust funds and the counterclaim damages.

The appeal was allowed in part, reducing the counterclaim to $20,000 and varying the net judgment in favour of the plaintiffs to $60,765.