George J. Karayannides

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

The plaintiff, Jeff Mailloux, brought a motion under s. 29 of the Class Proceedings Act, 1992, for leave to discontinue a proposed class action against Nissan Canada Inc. with prejudice and without costs.

Nissan consented to the motion.

The class action concerned a products liability claim for pure economic losses related to defective Takata airbag inflators.

The motion for discontinuance was brought due to significant changes in the legal landscape regarding compensation for pure economic loss from negligent supply of faulty goods, which greatly diminished the prospects of a substantial economic recovery for the class members.

The court granted the motion, finding that the action was commenced for a proper purpose, putative class members were not prejudiced, and the proposed notice of discontinuance was satisfactory.

This appeal concerns the interpretation of primary and excess directors' liability insurance policies, specifically regarding the availability and premium calculation of an Optional Extension Period (OEP) coverage.

The appellant, Assicurazioni Generali S.p.A. (excess insurer), argued that its Excess Policy did not include an OEP option or, alternatively, that the premium should be US$1.5 million.

The respondent, Cronos Group Inc. (insured), contended the OEP was incorporated via a "follow form" clause and the premium should be twice the basic premium of the Excess Policy, consistent with the primary policy's ratio.

The Court of Appeal dismissed the appeal, affirming the application judge's finding that the Excess Policy included the OEP option and that its premium was twice the basic premium, based on a holistic interpretation of the policies and commercial reasonableness.

The applicant, Cronos Group Inc., sought a declaration that it had a contractual right to exercise an Optional Extension Period (OEP) under its Excess Directors’ and Officers’ Liability Policy issued by the respondent, Assicurazioni Generali S.P.A., and that it successfully exercised this right.

The respondent denied coverage, arguing the OEP was not incorporated into the Excess Policy and the premium paid was insufficient.

The court found that the OEP was incorporated into the Excess Policy by reference to the Primary Policy, as it was not explicitly excluded.

The court also determined that the applicant's calculation and payment of the OEP premium, based on twice the original policy premium, was commercially reasonable and consistent with prior representations.

The application was granted, declaring the OEP right enforceable and the premium calculation valid.

This is a costs endorsement from the Court of Appeal for Ontario.

The respondents were awarded their costs of the appeal in the sum of $60,000, inclusive of disbursements and applicable taxes.

This decision followed an appeal from a Superior Court judgment and a prior costs order.

The Plaintiff and other parties sought costs for an aborted continued pretrial, which was rendered unproductive due to the non-attendance of a principal of the Defendants/Plaintiff by Counterclaim and their counsel, without timely notification.

The court found the non-attendance and lack of notice discourteous and a waste of time for counsel and the court.

Citing Rule 50.12 and 57.01 of the Rules of Civil Procedure and Section 131(1) of the Courts of Justice Act, the court ordered the Defendants/Plaintiff by Counterclaim to pay $12,000 in costs on a substantial indemnity basis.

Following the unopposed dismissal of an action claiming $35 million for fraud and conspiracy, the successful defendants and third parties sought their costs.

The court found that the plaintiffs' unsubstantiated allegations of fraud were advanced recklessly, entitling the primary defendants to costs on an elevated scale.

The court awarded the primary defendants $426,055.56 (splitting the difference between partial and substantial indemnity) and awarded the third parties their full claimed partial indemnity costs of $102,980.59.

This decision addresses pre-judgment interest and costs following a trial where the plaintiffs were awarded damages against Legalett Canada Inc. for negligent misrepresentation and breach of collateral warranty, but their claim against Joshua Teixeira was dismissed.

The court awarded the plaintiffs pre-judgment interest and partial indemnity costs from Legalett.

Concurrently, the court awarded partial indemnity costs to Teixeira from the plaintiffs.

The court declined to issue a Sanderson or Bullock order, finding it was reasonable for the plaintiffs to sue Teixeira personally and that the defendants did not improperly shift responsibility onto each other.

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action for indemnity under a share purchase agreement.

The action was based on alleged breaches of a tax representation and warranty.

The defendants argued the action was statute-barred and that the plaintiff's claim for "loss of use of funds" was limited by contract.

The court granted summary judgment, finding the action was statute-barred because the six-year limitation period began when the plaintiff knew the material facts of the breach and the resulting "claim" (Revenue Canada's reassessment), not upon a demand for indemnity or its refusal.

The court also dismissed the claim for loss of use of funds beyond the contractually agreed prime rate.

The defendants moved for summary judgment dismissing a multi-million dollar action and seeking judgment on two promissory notes totalling $1.25 million.

The court held that a broadly worded release executed in November 2009 barred most of the plaintiffs’ claims, particularly in light of admissions that the parties had a “clean slate.” However, the enforceability of the two promissory notes raised genuine issues requiring a trial because the surrounding documentation was inconsistent and some documents were admittedly fabricated.

After conducting a mini‑trial under Rule 20.04(2.2), the court concluded that a full appreciation of the evidence regarding the promissory notes could not be achieved on a summary judgment record.

Most of the plaintiffs’ action was dismissed, but the counterclaim relating to the promissory notes was directed to trial.

Following a successful motion by certain defendants to enforce a settlement agreement, the court determined the appropriate costs award.

The moving defendants sought full indemnity costs, arguing that the plaintiffs’ conduct throughout the proceeding justified such an award.

The court held that the plaintiffs acted unreasonably in refusing to acknowledge a binding settlement even after obtaining legal advice, which unnecessarily required the motion.

Considering the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court ordered substantial indemnity costs rather than full indemnity.

Costs of $15,000 were awarded to the successful moving defendants.

The moving defendants sought judgment under Rule 49.09 of the Rules of Civil Procedure to enforce a settlement allegedly accepted by the self-represented plaintiffs in a long‑running right‑of‑way dispute.

The plaintiffs had emailed questions about the offer and later returned a signed acceptance selecting one of two settlement options concerning the right‑of‑way location.

They later argued no agreement had been reached because their earlier email raised unresolved issues about the road location and user fees.

The court held that the earlier email constituted a request for clarification rather than a counter‑offer and that the signed document and confirming email amounted to unequivocal acceptance within the time limit.

Judgment was granted in accordance with the settlement.