Sharon C. Vogel

The applicants sought $430,000 in costs following a successful application regarding a construction dispute.

The respondents argued that a settlement offer they made should limit the applicants' costs to the period before the offer, and that disbursements for online legal research should not be compensable.

The court found that the respondents' non-monetary settlement offer was more favourable than the judgment obtained by the applicants, as it would have led to a faster final determination of the underlying dispute.

Consequently, the applicants' costs were limited to $92,119.92 incurred before the offer.

The court also disallowed the $4,060.18 claimed for online legal research, finding the applicants failed to prove these costs did not fall within standard office overhead.

The applicants, a consortium of construction companies building the Eglinton Crosstown LRT, sought declarations that the COVID-19 pandemic constituted an Emergency under their Project Agreement, entitling them to a Variation Enquiry for an extension of the Substantial Completion Date.

The respondents moved to stay the application, arguing the contract required all litigation to be deferred until after Substantial Completion.

The court dismissed the motion for a stay, finding it would cause irreparable harm by depriving the applicants of their contractual right to seek an extension.

The court granted the declarations, holding that the pandemic was an Emergency and that the respondents had required the applicants to implement additional or overriding procedures (social distancing), thereby triggering the Variation Enquiry process.

Following a successful motion, the plaintiff sought partial indemnity costs of $17,000.

The defendant argued the amount was excessive and proposed $6,000.

The court found the requested amount fair and reasonable, noting it was almost identical to the partial indemnity costs incurred by the defendant itself.

Costs were fixed at $17,000.

The City of Hamilton commenced an action against the architect and general contractor of an arena project for construction defects.

After years of inaction, the action was dismissed for delay by the registrar when the City's counsel inadvertently failed to attend a status hearing.

The City's motion to set aside the dismissal was denied by the motion judge.

On appeal, the Court of Appeal upheld the dismissal, finding that the 15-year delay was inordinately long, the critical five-and-a-half-year period of inaction was unexplained, and the delay caused actual prejudice to the defendants due to the unavailability and faded memories of key witnesses.

The appellants (CNR) insured a custom-built tunnel boring machine under an 'all risks' policy that excluded the cost of making good 'faulty or improper design'.

During construction, the machine failed due to excess differential deflection, allowing dirt to penetrate the main bearing and causing significant delay and repair costs.

The insurers denied coverage based on the design exclusion.

The Supreme Court of Canada held that the exclusion did not apply because the design was state-of-the-art and accommodated all foreseeable risks at the time it was finalized.

The Court concluded that a design is not 'faulty or improper' simply because it fails to withstand all foreseeable risks, provided it meets the highest engineering standards of the day.

The insurers, having been successful on appeal, sought costs for both the appeal and the lengthy trial.

The Court of Appeal awarded the insurers their costs of the proceedings on a partial indemnity scale, fixed at $135,000.

The court also awarded the insurers their costs of the trial on a partial indemnity scale, fixed at $510,000, noting that the trial involved complex factual and legal issues and that the claimed fees were reduced to reflect an appropriate partial indemnity recovery rate of approximately 65%.

The plaintiffs (CN companies) retained a manufacturer to build a custom tunnel boring machine (TBM) for a railway tunnel project.

The TBM broke down due to excess differential deflection, causing significant project delays.

The plaintiffs sought coverage under a builders risk insurance policy issued by the defendants.

The insurers denied coverage based on exclusions for faulty or improper design and inherent vice.

The trial judge found in favour of the plaintiffs, holding that the excess differential deflection was not foreseeable and thus the faulty design exclusion did not apply.

On appeal, the Court of Appeal allowed the appeal, finding that the trial judge erred in his foreseeability analysis.

The Court held that the risk of differential deflection was known and investigated by the designer, making it a foreseeable risk that the design failed to accommodate.

Consequently, the faulty or improper design exclusion applied, and the action against the insurers was dismissed.

The respondent investment dealer entered into a fidelity insurance contract with the appellant.

After discovering employee fraud, the respondent filed a proof of loss.

The appellant rescinded the bond, alleging misrepresentation in the application, and later brought a motion for summary judgment arguing the respondent failed to commence legal proceedings within the 24-month contractual limitation period.

The Supreme Court of Canada restored the motions judge's summary judgment in favour of the appellant, holding that there was no genuine issue for trial regarding the discovery of the loss, and that the contractual limitation period survived the appellant's wrongful rescission of the contract.