Donald W. Leschied

This decision concerns the allocation of costs following the settlement of a multi-party action arising from a 2011 boating accident.

The only remaining issue was the amount of costs payable to the plaintiffs.

The court awarded $146,091.74 in costs, inclusive of disbursements and HST, finding this amount fair and reasonable.

The court declined to award a premium or substantial indemnity costs, finding no basis for such an award in the circumstances, and emphasized the importance of reasonableness and the discretion of the court in costs matters.

This appeal arose from a tragic boat accident involving multiple fatalities and injuries.

The Court of Appeal addressed three consolidated appeals: liability of government respondents, interpretation of the Marine Liability Act's monetary cap, and costs.

The court upheld the motion judge's finding that the boat operators were solely liable for the accident, dismissing the appeal against the government respondents.

It also affirmed that the Marine Liability Act's monetary cap for maritime claims for loss of life or personal injury does not include costs and interest.

While leave to appeal the quantum of costs and the Sanderson Order was denied, leave was granted on one specific costs issue, resulting in both estates being held jointly and severally liable for one plaintiff's costs.

The moving party, Facca Incorporated, brought a motion for leave to appeal a November 2019 order.

The Divisional Court dismissed the motion for leave to appeal.

Costs of $2,000 were awarded to the third party, The Manufacturers Life Insurance Company, payable by the moving party.

No costs were awarded to the responding plaintiff as no costs submissions were received.

This is an appeal concerning an insurance claim for recoverable depreciation following a fire that destroyed a commercial building.

The insured, Champion, and insurer, Intact, had a settlement agreement with a 24-month replacement deadline and an automatic forfeiture clause for recoverable depreciation if not met.

A subsequent agreement conditionally waived this deadline, contingent on Champion closing a specific property purchase.

Champion failed to close that purchase and sought to substitute another property.

The motion judge found Intact had waived Champion's failure to close and granted summary judgment.

The Court of Appeal reversed, holding that forfeiture was automatic and Intact was not required to give notice.

The Court found Intact did not waive Champion's default and dismissed Champion's cross-appeal for relief from forfeiture or damages, as Champion had not completed replacement.

The plaintiff was terminated and entered into a settlement agreement with his employer, which required him to seek reasonable alternate employment to receive two $75,000 payments.

Shortly after, the plaintiff became severely disabled and could not seek employment.

The employer refused to pay, arguing failure to mitigate or frustration of contract.

The court granted summary judgment to the plaintiff, finding his disability excused the condition.

The plaintiff and employer also sought summary judgment against the employer's group insurer for long-term disability coverage, arguing the policy's 'minimum period required by law' included common law notice.

The court dismissed the motions against the insurer, finding a genuine issue for trial regarding the interpretation of the clause and industry practice.

The plaintiffs brought a successful motion for leave to file a late expert report and affidavit.

The court determined the costs of that motion.

Finding that the relief granted to the plaintiffs was an indulgence to ensure trial fairness, and noting the unreasonable delay by plaintiffs' counsel in delivering the report, the court ordered the plaintiffs to pay the defendants' costs of the motion.

The defendants were awarded a total of $18,000 in costs.

A pedestrian was catastrophically injured when struck by a vehicle whose owners had applied for automobile insurance.

The insurer issued a one-year policy but subsequently purported to rescind it based on material misrepresentation regarding one owner's driving record, sending a letter stating the coverage was "void from the inception date" approximately two months before the accident.

The injured plaintiff obtained judgment against the at-fault driver and owner but was unable to collect.

The plaintiff then sued the insurer under section 258(1) of the Insurance Act, which permits innocent third parties to recover directly from the at-fault driver's insurer.

The motion judge dismissed the action, finding the insurer had validly rescinded the contract at common law, making it void ab initio.

The Court of Appeal allowed the appeal, holding that an automobile insurer cannot rescind a contract at common law but must comply with the statutory scheme governing termination of automobile insurance contracts.

The defendant brought a motion under Rule 31.10 of the Rules of Civil Procedure to examine three non-party medical professionals for discovery.

The underlying action involved a plaintiff who became quadriplegic after an incident in a swimming pool.

The defendant sought to examine the non-parties regarding hospital records indicating the plaintiff had stated he dove into the pool, contradicting his discovery evidence that he fell from a ladder.

The court granted the motion, finding that the non-parties had information relevant to the material issue of liability, the defendant was unable to obtain the information from the plaintiff, and it would be unfair to require the defendant to proceed to trial without examining them.

Costs were awarded to the defendant.

The defendants brought a motion to strike portions of the plaintiff's Fresh as Amended Statement of Claim, arguing they offended s. 36(3) of the Regulated Health Professions Act by referring to the contents and outcomes of a College of Nurses discipline proceeding.

The plaintiff argued the Court of Appeal had previously granted leave to include these facts.

The court held that s. 36(3) provides an absolute prohibition against admitting records or decisions of College proceedings in civil actions.

The motion was granted, and the impugned portions of the pleadings were struck.

The plaintiff appealed an order of a Master dismissing her action for delay following a status hearing.

The action arose from the suspension of her nursing licence, allegedly due to a flawed report by the defendant physician.

The Master had applied a rigid two-part test, finding the plaintiff failed to provide an acceptable explanation for the delay.

The Divisional Court allowed the appeal, holding that the Master erred in principle by failing to apply a contextual approach and by ignoring the broader litigation history, including a companion case that resolved a key issue regarding document admissibility.

The order dismissing the action was set aside.

The defendants, including the Attorney General of Canada, the CRA, and various Crown prosecutors and CRA investigators, brought a motion to strike the plaintiffs' jury notice and various causes of action in a 111-page statement of claim.

The plaintiffs' action arose from a lengthy tax evasion investigation and subsequent criminal charges that were ultimately discharged at a preliminary inquiry.

The court granted the motion, striking the jury notice because the action was against the Crown.

The court also struck the claims for negligence, malicious prosecution, breach of fiduciary duty, Charter breaches, misrepresentation, and conspiracy against the Crown prosecutors and CRA investigators for failing to disclose a reasonable cause of action, largely due to prosecutorial immunity and the lack of a private law duty of care.

Claims by the accounting firm BDO and Family Law Act claims by the plaintiffs' spouses were also struck.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the plaintiff sought to continue a civil action alleging misfeasance in public office, negligence, and related claims arising from a professional opinion that led to suspension of her nursing licence.

The court considered whether the plaintiff met the two-part test requiring an acceptable explanation for litigation delay and proof that the defendant would suffer no non-compensable prejudice if the action proceeded.

Although the court accepted that the defendant would suffer no non-compensable prejudice, the plaintiff failed to adequately explain lengthy delays in documentary production, failure to bring an intended motion, and failure to comply with a previously approved timetable.

The plaintiff also failed to provide a clearly articulated plan to advance the litigation.

As the plaintiff did not satisfy both elements of the test, the action was dismissed for delay.

The plaintiffs brought a pre-discovery motion in a medical malpractice action seeking further and better affidavits of documents from the defendants, specifically requesting production of documents relating to allegations of prior similar facts involving Dr. Perkin.

The court ordered Dr. Perkin to produce records of complaints not subject to CPS proceedings, and ordered the defendants to produce medical reports and discovery transcripts from three other lawsuits involving similar facts.

Requests for hospital records from the other lawsuits, CPS complaint records, and an order for a discovery plan were dismissed.

The intended plaintiffs in a medical malpractice action obtained an order for pre-action discovery of certain documents from the hospital and doctor.

The defendants appealed.

The Court of Appeal allowed the appeal, holding that the Rules of Civil Procedure do not permit pre-action discovery, and the intended plaintiffs had ample information to plead their case without a Straka order.

The Court also held that a report from the College of Physicians and Surgeons was inadmissible under the Regulated Health Professions Act.

The appellant received a lump sum settlement of $105,000 from her disability insurer after her benefits were terminated and she sued.

The Minister of National Revenue reassessed her to include the full amount as income.

The Tax Court set aside the reassessment, but the Federal Court of Appeal held that the portion attributable to arrears was taxable.

The Supreme Court of Canada dismissed the appeal, holding that under the surrogatum principle, the portion of the settlement intended to replace past disability benefits was payable on a periodic basis pursuant to a disability insurance plan and was therefore taxable under s. 6(1)(f) of the Income Tax Act.