Dawn Searle

The County brought Rule 21 motions seeking a declaration that its winter maintenance contractor, Steve Walt Property Maintenance, breached their contract by failing to procure insurance naming the County as an additional insured.

The County also sought damages for defence costs and the right to appoint its own counsel due to a conflict of interest with Steve Walt and its insurer, Economical Mutual Insurance Company.

Economical argued the motion was inappropriate due to disputed material facts.

The court found the contract unambiguous, Steve Walt in breach, and granted the County damages for defence costs and the right to choose its own counsel due to a clear conflict of interest.

The defendant insurer sought to examine the plaintiffs and their insured under Rule 39.03 of the Rules of Civil Procedure in advance of the plaintiffs' motion for summary judgment.

The court confirmed its jurisdiction to address the procedural order at a case conference.

While acknowledging the insured, Ian Horsefield, possessed relevant evidence regarding the fire's cause, the court dismissed the insurer's request to compel examinations.

It held that the insurer could not re-litigate the facts of the claim, including the circumstances of the fire, which were established by a prior consent judgment against the insured, as the insurer had chosen not to defend the original action.

The "equities" defence under s. 132(1) of the Insurance Act was limited to policy construction and breaches, not the underlying liability or damages.

The plaintiff was injured in a slip and fall on snow accumulated near a curb in a commercial parking lot.

The property owner and the snow removal contractor brought motions for summary judgment to dismiss the action.

Applying the framework from Hryniak v. Mauldin, the court found a genuine issue requiring a trial regarding the property owner's liability, as there were questions about the parking lot design and the adequacy of the snow removal plan.

However, the court granted summary judgment dismissing the claims against the snow removal contractor, finding it had fulfilled its contractual obligations.

Following a successful insurance coverage application concerning a duty to defend a personal injury action under a CGL policy, the court addressed the issue of costs.

The applicants sought 75% of their full indemnity costs, while the respondent argued that no costs should be awarded due to a prior settlement offer proposing payment of 50% of costs.

The court rejected the respondent’s position and confirmed that the applicants, as the successful party, were entitled to costs.

Applying the principles of proportionality and the usual partial indemnity approach under Rule 58, the court assessed costs at $4,500 payable by the respondent.

The applicants sought an order requiring their insurer to defend or indemnify defence costs in a negligence action arising from a slip-and-fall on shopping centre premises.

The applicants were additional insureds under a commercial general liability policy issued to a snow removal contractor, with coverage limited to operations performed by that contractor under a snow removal agreement.

The court held that some allegations in the underlying statement of claim potentially fell within the contractor’s contractual operations while others alleged independent occupiers’ liability outside the scope of the policy.

Because the pleadings disclosed both covered and uncovered claims, the insurer had a partial duty to defend.

The insurer was ordered to pay 75% of the applicants’ defence costs on an ongoing basis, subject to reconsideration as the factual record develops.

At a status hearing pursuant to Rule 48, the plaintiff sought to explain a delay in prosecuting an action for out-of-country medical coverage by arguing he had not yet been pursued for the medical bill.

The court found this explanation insufficient, distinguishing the case from situations where liability depends on an underlying action.

Applying the test from Khan v. Sun Life, the court concluded the plaintiff failed to meet the onus of explaining the delay and addressing prejudice to the defendants.

The action was dismissed for delay.

Appeal from an assessment officer’s decision awarding costs following settlement of a defamation action commenced under the Simplified Procedure.

The appellant argued the assessment failed to properly apply proportionality and the reasonable expectations of the losing party.

The court held that the assessment officer appropriately considered the Rule 58.06(1) factors, including the significance of reputational harm and the defendant’s litigation conduct, and reasonably discounted the claimed fees.

The officer’s conclusions reflected no error in principle, and the substantial indemnity costs awarded for the assessment hearing were also upheld.