David A. Zuber

The defendant insurer brought a motion under s. 128 of the Insurance Act to compel the plaintiff insureds to participate in the statutory appraisal process following a fire loss.

The plaintiffs opposed the motion, arguing the matter should proceed to summary judgment due to a fundamental disagreement over the valuation date and allegations of bad faith.

The court dismissed the motion, finding that the appraisal process is limited to valuation and cannot resolve broader legal disputes such as policy interpretation regarding the correct valuation date.

The plaintiffs were ordered to submit a sworn proof of loss.

The appellants appealed a jury verdict awarding the respondent over $1.5 million in damages arising from a motor vehicle accident.

The trial judge declined to put certain jury questions proposed by the appellants regarding causation and apportionment of damages between three successive motor vehicle accidents.

The appellants also challenged the trial judge's summary of evidence and her failure to instruct the jury to disregard expert evidence concerning past income loss.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to jury questions and instructions, and finding the jury's damage award was not plainly unreasonable.

The Supreme Court of Canada dismissed the appeal and held Ontario courts lack jurisdiction over the claims against the Italian defendants.

The majority accepted the Ontario cardmember agreement as a presumptive connecting contract but found the presumption rebutted because the real and substantial connection to Ontario was weak given the tort occurred in Italy and the foreign defendants’ relationship to Ontario was remote.

The dissent would have restored the motion judge’s ruling and allowed Ontario jurisdiction.

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

The appellant appealed the dismissal of her action for damages arising from a trip and fall on a municipal sidewalk.

The trial judge had found the municipality was not liable under s. 44(3)(a) of the Municipal Act, 2001, as it did not know and could not reasonably have been expected to know about the state of repair.

On appeal, the appellant argued the trial judge failed to assess the adequacy of the inspections, failed to weigh business record evidence, and reversed the onus of proof.

The Divisional Court dismissed the appeal, finding no errors in the trial judge's assessment of the inspection adequacy, weighing of evidence, or application of the burden of proof.

This appeal concerned the interpretation of a commercial lease, specifically the allocation of risk for fire damage.

The landlord, James Dick Construction Limited (JDC), sued its tenant, Courtice Auto Wreckers Limited (CAW), for damages after a fire destroyed one leased building and damaged another.

JDC alleged CAW breached the lease by failing to maintain the sprinkler system.

The trial judge dismissed the action, finding that the landlord's covenant to insure the buildings allocated the risk of fire loss to the landlord, even if the tenant was responsible for sprinkler system repair expenses.

The Court of Appeal upheld the trial judge's decision, affirming that while a covenant to insure generally implies risk allocation to the covenantor, this is not an absolute rule and requires a holistic interpretation of the entire contract and surrounding circumstances.

The Court found no extricable error of law or palpable and overriding error in the trial judge's application of the law.

The plaintiffs sought court approval of a Pierringer agreement with the City of Ottawa and leave to amend their statement of claim.

The non-settling defendant, United Petroleum, opposed the agreement, arguing it would suffer prejudice by potentially bearing the insolvent co-defendant's share of damages due to joint and several liability.

The court approved the Pierringer agreement, finding the alleged prejudice speculative and emphasizing the policy objective of promoting settlements.

The court also granted leave to amend the pleading but required the City of Ottawa to remain in the style of cause with its original allegations for apportionment of fault.

The plaintiff, Old Republic Insurance Company of Canada, initially sued the defendants for $60,000 under simplified procedure and noted them in default.

The plaintiff subsequently moved for default judgment and to amend its Statement of Claim to increase the claim to $200,000.

Upon being served with the motion to amend, the defendants brought a cross-motion to set aside the noting of default.

The court granted both motions, allowing the plaintiff to amend its claim to the higher amount and setting aside the default, thereby permitting the defendants to defend the action on its merits.

The appellants appealed a summary judgment dismissing their action against TD Canada Trust, arguing errors regarding the availability of summary judgment in civil jury actions, the exclusion of expert evidence, and procedural fairness.

The Court of Appeal dismissed the appeal, affirming that the Hryniak test for summary judgment applies equally to civil jury actions, the motion judge properly excluded the expert evidence, and the process was procedurally fair.

The respondents were injured in a water taxi accident in Venice, Italy, and sued the foreign water taxi operators in Ontario, relying on their travel booking contract with Amex Canada to establish jurisdiction.

The motion judge found that the Ontario court had jurisdiction based on the fourth presumptive connecting factor from Van Breda (a contract connected with the dispute was made in the province).

The Court of Appeal allowed the appeal, holding that even if the presumptive connecting factor was established, the foreign appellants successfully rebutted it because the Ontario contract had little or nothing to do with the subject matter of the litigation against them.

The appellants appealed a motion judge's decision refusing to allow them to amend their pleading to add a claim for punitive damages after the action was set down for trial.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's determination that the significant delay in seeking the amendment resulted in presumed non-compensable prejudice to the respondent.

The court affirmed that requiring a party to change its entire litigation strategy late in the proceedings constitutes non-compensable prejudice.

While the motion judge had granted leave to increase compensatory damages, the denial of leave for punitive damages was upheld due to the unexplained, lengthy delay and its impact on the respondent's defence.

The defendant brought a motion under Rule 21.01 to determine whether the plaintiff was barred from bringing a tort action under s. 267.6(1) of the Insurance Act for operating an uninsured dirt bike at the time of the collision.

The collision occurred on private property.

The court held that the plaintiff was not barred from suing, as the prohibition under the Compulsory Automobile Insurance Act only applies to uninsured vehicles operated on a highway at the time of the incident.

The motion was dismissed.

The parties were unable to agree on costs following a motion where the plaintiffs were granted leave to amend their statement of claim to increase damages and ordered the defendant to answer undertakings, but the balance of the motion was dismissed.

The court found that the defendant was the overall successful party as the plaintiffs were unsuccessful on the most contentious issues.

Taking into account the divided success and the late stage at which the motion was brought, the court awarded the defendant costs of $8,000 on a partial indemnity basis.

At a trial management conference, the court considered whether a jury trial scheduled to begin on May 24, 2022, could be completed by June 30, 2022.

Despite the cooperative efforts of counsel to pare down the estimated trial time, the court found that proceeding would create a very high risk of a mistrial due to scheduling constraints and unforeseen delays.

The court ordered the trial adjourned to a window in early 2023.

The plaintiffs, James Dick Construction Limited and Mara Limestone Aggregates Ltd., brought an action for damages arising from a fire loss involving two leased buildings.

The defendants, Courtice Auto Wreckers Limited et al., argued the claim was barred by the plaintiffs' covenant to insure.

The court found that the landlord's covenant to maintain general property insurance sufficient to cover replacement costs allocated the risk of loss, including fire, to the landlord, thereby barring the action against the tenants.

The court also found that the defendants did not breach the lease regarding sprinkler system maintenance and that their actions did not cause the damage.

Had damages been awarded, they would have been based on diminution in value, and private insurance proceeds would not have been deductible.

The defendant sought an adjournment of a long-standing motor vehicle accident trial, scheduled for June 2022, to allow for a Workplace Safety and Insurance Appeals Tribunal (WSIAT) determination regarding the plaintiff's employment status at the time of the accident.

The WSIAT application was filed at the eleventh hour, a decade after the action commenced and after multiple trial dates had been fixed.

The court dismissed the adjournment request, finding it unfair to the plaintiff to further delay the case due to the defendant's belated application, and that it was not in the interests of justice.

The plaintiffs sought an adjournment of a fixed 32-day jury trial, scheduled to commence on May 16, 2022, due to their intention to appeal a prior order that dismissed their request to add a punitive damages claim and denied leave for a further affidavit of documents.

The court denied the adjournment, emphasizing that the action, stemming from a 2014 incident, had been set down for trial twice and counsel had previously certified readiness.

The judge found no extenuating circumstances to justify adjourning a long-booked trial, noting the plaintiffs' delay in seeking amendments and pursuing an appeal.

The plaintiffs brought a motion seeking various forms of interlocutory relief, including compelling discovery, amending their statement of claim to increase damages and add punitive damages, and abridging time for an expert report.

The court granted leave to increase compensatory damages from $4 million to $7 million and ordered the defendant to answer two specific undertakings.

However, the court denied leave for a further affidavit of documents and for adding a punitive damages claim, citing significant delay and presumed prejudice.

The request to abridge time for an expert report was deferred to the trial judge.

The appellant, Annabelle Maritza Edgeworth, appealed an order which dismissed most of the claims in her action.

Her action alleged that the respondents (lawyers, an insurer, and a medical assessor) conspired to suppress a defence medical report in a prior personal injury case, leading to claims for unlawful means conspiracy, intrusion on seclusion, conspiracy to injure, and misrepresentation.

The Court of Appeal upheld the motion judge's decision, finding that a failure to comply with a procedural rule (r. 33.06) was not a "wrongful act" for unlawful means conspiracy, and the intrusion on seclusion claim failed as the medical examination was consented to.

The court also affirmed the removal of the appellant's counsel due to a conflict of interest.

The appeal was dismissed with costs.

Following a successful summary judgment motion dismissing the plaintiffs' action, the defendant TD sought partial indemnity costs of $231,077.50.

The plaintiffs argued for a reduction based on the principal plaintiff's impecuniosity, the novelty of the case, and excessive time claimed.

The court found that while the plaintiff's financial circumstances warranted some moderation, the novelty of the case did not justify a reduction as basic negligence principles applied.

The court also found some of TD's claimed time excessive, but noted the plaintiffs' conduct caused significant delay.

The court awarded TD costs of $130,000 inclusive of disbursements and HST.