Robert J. Howe

A dispute arose following a fire at a heritage house unit within a condominium development regarding who had the right to control and conduct repairs to the damaged structure.

The unit owner sought an interlocutory and final injunction preventing the condominium corporation and insurer from proceeding with repairs and sought a declaration granting him exclusive authority over restoration.

The condominium corporation argued the declaration and condominium governance documents imposed the obligation to repair damage on the corporation and that the owner had failed to act within a reasonable time.

The court interpreted the condominium declaration and held the corporation had the right and obligation to carry out exterior and roof repairs to restore the property, while leaving interior renovation decisions to the unit owner.

The request for injunctive relief was denied and the corporation was authorized to proceed with exterior restoration.

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

The Court of Appeal found no error in the motion judge's careful and thorough reasons on either of the points argued.

The appeal was dismissed with costs awarded to the respondents.

The appellant, Toronto Hydro, appealed a Divisional Court decision that quashed an Ontario Energy Board (OEB) ruling.

The OEB had found an implied agreement existed between Toronto Hydro and the respondent developer prior to a statutory transition date, allowing Toronto Hydro to charge higher pre-transition rates for an electricity connection.

The Court of Appeal held that the Divisional Court erred in finding the OEB's decision unreasonable.

Applying the reasonableness standard of review, the Court of Appeal concluded that the OEB's reliance on industry practice and the parties' relationship was a tenable line of analysis.

The appeal was allowed and the OEB decision reinstated.

The respondent, a former director of a corporation, sought a declaration that his insurer owed a duty to defend him against a counterclaim brought by the corporation.

The insurer denied coverage based on an 'insured v. insured' exclusion clause in the Directors' and Officers' Liability Policy.

The application judge found a duty to defend, relying on American authorities that considered the purpose of the exclusion clause.

The Court of Appeal allowed the insurer's appeal, holding that the exclusion clause was unambiguous and clearly excluded coverage for claims brought by the corporation against its directors.

As the claim fell outside coverage, there was no duty to defend.

Following the dismissal of the main appeal, the successful third parties and defendants sought costs on a full indemnity basis, relying on prior releases and indemnity agreements.

The Court of Appeal found the claimed amounts excessive due to duplication of effort among the multiple respondents.

The Court fixed costs in reduced amounts, awarding a total of $72,000 across the various third parties and the defendant law firm.

The appellant insurer appealed a trial judgment declaring the respondent insured entitled to indemnification under a fidelity insurance bond for losses caused by employee theft.

The insurer denied coverage on the basis that the insured made material misrepresentations in its renewal application regarding its cheque signing controls and failed to disclose its shift to a computerized cheque generating system.

The Court of Appeal allowed the appeal, finding that the insured made a material misrepresentation by stating that principals signed all cheques when, in fact, a computerized facsimile signature was used.

The Court also held that the insured breached its general obligation to disclose the significantly enhanced risk created by the new system.

The appellant appealed a motions judge's decision dismissing its claim against the respondents.

The motions judge found that the Ontario Energy Board had exclusive jurisdiction over the dispute, which centered on whether the respondent breached its license by failing to apply the Distribution System Code.

The Court of Appeal agreed that the fundamental issue—whether an agreement existed prior to November 1, 2000—was within the Board's exclusive jurisdiction under the Ontario Energy Board Act.

The action was deemed an attempt to circumvent the Board's decision, and the appeal was dismissed.

The insurer appealed a trial judgment granting disability benefits despite findings of material misrepresentations about health and income.

The Court of Appeal held that the trial judge erred by failing to consider recklessness as a basis for civil fraud under the governing test, and further held that on reinstatement of the policy the insured had a positive duty to disclose facts plainly bearing on insurability, including the absence of any insurable income, even where the insurer did not insist on a written reinstatement application.

Because the nondisclosure at reinstatement occurred within two years, the incontestability clause did not protect the insured.

The policy was voidable and the action was dismissed.