Derek V. Abreu

The appellant, an auto glass repair company, appealed a summary judgment dismissing its action against the respondent insurer for breach of contract and intentional interference with economic interests.

The appellant claimed it had obtained assignments from insureds to receive direct payments for windshield repairs at a market rate of $100, but the insurer only paid $50 per repair.

The Court of Appeal upheld the motion judge's finding that individual contracts were formed between the repair company and the insurer for each repair at the specified $50 rate, and that the purported assignments were ineffective because the insureds had paid nothing and had no claim against the insurer to assign.

The appeal was dismissed.

The appellant, an Ontario-based multi-national enterprise, appealed a motion judge's finding that Ontario law governed its contract with the respondent, an Alberta corporation.

The contract, which lacked a choice of law clause, was for the design and sale of a fryer and oven system that allegedly caused a fire at the respondent's plant.

The Court of Appeal upheld the motion judge's application of the 'closest and most real connection' test, agreeing that the nature, subject matter, and place of performance of the contract favoured Ontario, as the system was designed and its components ordered there.

The appeal was dismissed.

On cross-motions for summary judgment and summary dismissal, the court rejected a windshield repair company's claim for additional payment beyond the specific amounts authorized by an insurer for thousands of repairs.

The court held that each repair was governed by a separate contract formed when the insurer authorized the work at a stipulated rate and the plaintiff performed it without renegotiation.

The purported assignment language in the work order did not assign the insurance policy, and the insureds had no enforceable monetary claim to assign where the repairs had been completed at no cost to them.

The plaintiff's reliance on an asserted market rate was irrelevant, and the action was summarily dismissed.

Following settlement of a negligence action concerning damage at a nuclear generating station, the defendant brought a third party claim against its lawyers alleging professional negligence in drafting and advising on contractual arrangements and settlement strategy.

The lawyers in turn issued a fourth party claim against the original defendants and the plaintiff seeking contribution and indemnity under the Negligence Act.

The court held that the third party claim limited recovery to the lawyers’ proportionate degree of fault, meaning they could never be liable for damages attributable to others.

Because contribution rights arise only where a party may be required to pay more than its proportionate share of the plaintiff’s damages, the fourth party claim disclosed no reasonable cause of action.

The claim was struck under rule 21.01(1)(b) of the Rules of Civil Procedure.

The plaintiff school board sued the appellant and his son after the son allegedly set fire to a school.

The claim against the appellant was for negligent supervision.

The appellant's homeowner's insurer refused to defend him, relying on an exclusion clause for bodily injury or property damage caused by any intentional or criminal act or failure to act.

The motion judge held the insurer had no duty to defend.

The Court of Appeal allowed the appeal, finding that the exclusion clause only applies to intentional or criminal failures to act, and that the negligence claim against the appellant was not derivative of the son's intentional tort.

Two insurers, Wawanesa and Lombard, appealed preliminary arbitration decisions regarding a priority dispute over accident benefits.

Wawanesa, the first insurer to receive the application, deflected it to Lombard.

Lombard paid benefits but later disputed priority without providing the required 90-day notice.

The arbitrator ruled that Wawanesa's breach of the regulation prevented it from relying on Lombard's failure to give notice, but also ruled that Wawanesa was not permanently precluded from disputing priority.

The applications judge upheld both decisions.

The Court of Appeal dismissed both appeals, finding no error in the reasoning below.

Two insurers, Wawanesa and Lombard, appealed preliminary arbitration decisions regarding a priority dispute over accident benefits.

Wawanesa, the first insurer to receive the application, deflected it to Lombard.

Lombard paid benefits but later disputed priority without providing the required 90-day notice.

The arbitrator ruled that Wawanesa's breach of the regulation prevented it from relying on Lombard's failure to give notice, but also ruled that Wawanesa was not permanently precluded from disputing priority.

The applications judge upheld both decisions.

The Court of Appeal dismissed both appeals, finding no error in the reasoning below.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal, awarding costs of $7,000 to the respondent.

The insured struck a pedestrian in a strip mall parking lot while driving alone, contrary to her G1 licence conditions.

She pleaded guilty to Highway Traffic Act offences.

Her insurer denied coverage, arguing she was not 'authorized by law' to drive under Statutory Condition 4(1).

The Court of Appeal held that the guilty pleas did not create issue estoppel in the civil action due to the minor stakes of the traffic tickets compared to the civil suit.

Furthermore, the parking lot was not a 'highway' under the Highway Traffic Act, meaning the graduated licensing restrictions did not apply at the time of the accident.

The insurer was ordered to defend and indemnify the insured.

The infant plaintiff was severely injured when a fence on the appellant's premises fell on him.

A jury awarded approximately $3 million in damages, apportioning liability 95% to the appellant and 5% to the fence installer.

The appellant appealed the apportionment, arguing the trial judge erred in admitting a statement from a deceased employee of the installer and failing to caution the jury on its use.

The Court of Appeal dismissed the appeal, finding no substantial wrong or miscarriage of justice, as the jury's reasons for liability focused on the appellant's failure to rectify the fence after it had fallen on three prior occasions, without relying on the disputed statement.

The moving party sought leave to appeal an order extending the time for the respondents to serve their statement of claim.

The statement of claim was issued just before the limitation period expired but was not served until more than four years later, and the respondents failed to provide the 120-day statutory notice under s. 258.3 of the Insurance Act.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's finding of no irremediable prejudice, and noting that the potential disregard of the statutory notice requirement is an issue of public importance.

The individual plaintiff, an owner-operator for an American trucking company, was involved in a motor vehicle accident in Ontario.

His tractor was insured by a foreign property damage insurer and a foreign liability insurer that had filed an undertaking to be bound by the Ontario Insurance Act.

The property damage insurer paid for the repairs and brought a subrogated tort action against the at-fault drivers.

The Court of Appeal held that section 263 of the Insurance Act bars all tort actions for property damage against a negligent party.

Because the insured's right of action was extinguished by the statute, the insurer's derivative subrogated claim was also barred.

The appellants appealed a motion judge's decision denying them leave to issue a third party claim.

The motion judge had relied on the decision in Misko v. Doe.

The appellants conceded their appeal rested entirely on the proposition that Misko v. Doe was wrongly decided.

As the Court of Appeal recently dismissed the appeal in Misko v. Doe, this appeal was also dismissed.

The appellant, a motor vehicle lessor, was sued after an accident involving its leased vehicle driven by an excluded driver.

The respondent insurer denied coverage based on an OPCF 28A Excluded Driver Endorsement signed by the lessees.

The insurer had provided the appellant with a certificate of insurance noting the endorsement but failed to deliver a copy of the endorsement itself.

The Court of Appeal held that under section 232(3) of the Insurance Act, an insurer must deliver a copy of every endorsement to the insured.

The insurer's failure to do so precluded it from relying on the endorsement, triggering its duty to defend and indemnify the appellant.

The appellant landlord appealed a jury award of punitive damages arising from its continuing failure to maintain and repair the respondent's apartment.

The Court of Appeal dismissed the appeal, finding the jury properly identified an independent actionable wrong based on the landlord's highly reprehensible conduct.

The respondent's cross-appeal on costs was allowed, as the trial judge erred in failing to apply Rule 49.10 after the judgment exceeded the respondent's offer to settle.

The respondent was awarded substantial indemnity costs for the trial and costs of the appeal.

The plaintiff suffered permanent vestibular toxicity after being treated with the antibiotic Gentamicin for a severe sinus infection.

At trial, the otolaryngologist was found liable for failing to properly monitor for ototoxicity and failing to emphasize the need for ongoing vigilance regarding symptoms.

The trial judge also granted a non-suit dismissing the action against the home care nurses (VON).

On appeal, the Court of Appeal overturned the finding of liability against the doctor, concluding there was no evidence that the two-to-three-day delay in discontinuing the medication caused the plaintiff's injuries.

The Court also rejected an alternative argument based on lack of informed consent, finding that a reasonable person in the plaintiff's position would have continued the medication.

The appeal against the VON was dismissed as no expert evidence established the standard of care for home care nurses.

The minor appellant was injured in a motor vehicle accident in Quebec while a resident of Ontario.

The appellants sued the at-fault driver and their own insurer under the uninsured motorist coverage of their Ontario automobile policy.

The motion judge granted summary judgment dismissing the action against the insurer, finding that Quebec's no-fault legislation applied and barred the tort claim.

The Court of Appeal dismissed the appeal, holding that under the lex loci delicti rule, Quebec substantive law applied.

Because Quebec's no-fault regime precluded any tort claim against the driver, the appellants were not 'legally entitled to recover' damages from her, which is a precondition for accessing uninsured motorist coverage under s. 265(1) of the Insurance Act.

The defendant insurer brought a motion for leave to appeal a summary judgment costs decision to the Divisional Court.

The underlying action involved a motor vehicle accident where the plaintiff claimed $1.5 million in damages.

The motion judge dismissed the motion for want of jurisdiction, finding that the proposed appeal did not fall within the monetary limits or other provisions of section 19(1) of the Courts of Justice Act governing the Divisional Court's jurisdiction.

No costs were awarded for the motion as the responding parties failed to address the jurisdictional issue.

The plaintiff brought a motion to have the defendant's appeal and the plaintiff's cross-appeal heard together in the Court of Appeal.

The defendant had appealed only the $16,750 punitive damages portion of a $148,143.50 judgment to the Divisional Court.

The Court of Appeal held that under s. 19(1)(a) of the Courts of Justice Act, jurisdiction turns on the total amount of the final order, not the amount in issue on the appeal.

Because the final order exceeded $25,000, the appeal and cross-appeal were properly brought to the Court of Appeal.

The plaintiffs were involved in a motor vehicle accident when a third party swerved to avoid an unidentified driver and collided with their vehicle.

After the limitation period expired, the plaintiffs successfully moved to add the third party as a defendant under rule 5.04(2) of the Rules of Civil Procedure.

The third party appealed.

The Divisional Court allowed the appeal, finding that adding the third party as a defendant would cause significant prejudice due to the 'one percent rule' regarding unidentified motorist coverage, and that the motions judge erred in finding special circumstances.