Tim Crljenica

The defendant City of Windsor brought a motion for leave to amend its statement of defence to add a statutory notice defence under section 44(10) of the Municipal Act, 2001.

The plaintiff opposed the motion, arguing that the late amendment would cause non-compensable prejudice and that the proposed amendment lacked prima facie merit.

The court granted leave to amend, finding that the plaintiff failed to establish non-compensable prejudice, that the amendment raised a triable issue with apparent merit, and that while the delay was unexplained, it did not constitute inordinate delay triggering a presumption of prejudice.

The court imposed strict procedural terms including further discovery and motion deadlines.

The court dismissed Zenith’s appeal of an arbitrator’s decision finding it the priority insurer for accident benefits under Ontario’s Insurance Act.

The decision clarifies that an insurer licensed in Ontario is subject to Ontario’s priority rules for accidents occurring in Ontario, even if the policy was issued elsewhere, due to reciprocal legislative provisions.

The court distinguished Travelers v. CAA and similar cases, emphasizing that territorial overreach does not occur where the accident is in Ontario and the insurer is licensed in Ontario.

The court also addressed the interplay between Ontario and Alberta insurance legislation and the effect of reciprocal undertakings and licensing conditions.

The court dismissed the plaintiff's action for delay under Rule 48.14 of the Rules of Civil Procedure.

The plaintiff, 1 Royal Gate Village Properties Ltd., failed to provide a reasonable explanation for an almost eight-year delay in prosecuting its claim against CCI Group Inc. regarding an allegedly deficient property condition assessment.

The court found that explanations based on alleged bankruptcy representations, the COVID-19 pandemic, and financial constraints were not sufficient.

The court also found that the defendant would suffer non-compensable prejudice if the action proceeded, including the death of key witnesses, faded memories, and the inability to inspect the property due to remedial work.

Costs were awarded to the defendant.

The applicant law firm sought a charging order against its former client, Christine Roberts, and her accident benefits insurer, Chubb Insurance Company of Canada, for legal fees and disbursements incurred in pursuing accident benefits and a potential tort claim.

The court found that the statutory and common law criteria for a charging order or lien were not met, as there was no property recovered or preserved through the solicitor’s efforts.

The court also noted that any assignment of SABS benefits would be void by statute.

The application was dismissed in its entirety.

The court considered costs following a motion by the defendants to dismiss the plaintiffs’ action for delay and breaches of the Rules of Civil Procedure.

Although the motion to dismiss was denied, the court ordered the plaintiffs to pay the defendants $4,000 in costs, citing the plaintiffs’ repeated non-compliance with court orders and litigation delay.

The decision discusses the principles governing costs, including the court’s discretion, the impact of blameworthy conduct, and the effect of settlement offers.

The plaintiff, Breaking Ground Drilling and Blasting Inc., sued Hanslip Demolition for unpaid invoices.

Hanslip Demolition counterclaimed for $6 million due to alleged deficient work and issued a Third Party Claim against Lloyd's of London Limited (Lloyds) and Intact Insurance Company, seeking indemnification as an additional insured under Breaking Ground's policy.

Lloyds brought a motion to strike the Third Party Claim for disclosing no reasonable cause of action.

The court dismissed the Third Party Claim against Lloyds, finding that Hanslip Demolition's claims (for defence costs and indemnity for the main action, and for its counterclaim losses) were not covered by the commercial general liability policy, which only covered bodily injury, personal injury, property damage, or advertising liability caused by an occurrence.

The court also found that Hanslip Demolition could not trigger the policy for property damage to the quarry (not its property) and that the conditions for a direct action against the insurer under s. 132 of the Insurance Act were not met as no judgment had been obtained against Breaking Ground.

The plaintiff, Mizen Holdings Corporation, initiated a subrogated action against the City of Toronto and Ontario Excavac Inc. (OE) for water losses during condominium construction, alleging negligence.

The City and OE issued third-party claims for contribution and indemnity against Mizen's contractors: YYZed Project Management, Otomic Contractors Ltd., and Shor-Cais Foundation Contractors (the "third parties").

The third parties moved for summary dismissal of these claims, arguing Mizen had no right to sue them due to contractual waivers, covenants to insure, and the anti-subrogation rule, which would, under the Giffels principle, bar the defendants' claims.

The court dismissed the motion, finding genuine issues for trial regarding the scope of the covenant to insure and concluding that the contractual waivers had not crystallized at the time of the losses.

The anti-subrogation rule was also found not to apply to uninsured losses or to prevent the defendants' claims in these circumstances, particularly where waivers were post-tort conduct.

The moving party insurer brought a motion to dismiss the respondent's application for judicial review for delay.

The respondent had commenced the application over 30 months prior but took no steps to perfect it until the eve of the motion.

The court applied the test for dismissing an application for judicial review for delay, finding the 30-month delay excessive, the explanation for the delay unsatisfactory, and the delay long enough to presume prejudice.

The motion was granted and the application for judicial review was dismissed.

The appellant insurer appealed an order requiring it to pay interest on retroactive attendant care and housekeeping benefits to the respondent, who was catastrophically injured in a motor vehicle accident.

The insurer argued the benefits were not overdue until a catastrophic impairment determination was made in 2013.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that the respondent had been catastrophically impaired since the accident and that the benefits were therefore overdue from the dates they were initially terminated or capped, entitling her to interest.

The applicant sought interest on attendant care and housekeeping arrears after the insurer ultimately accepted that she had sustained a catastrophic impairment.

The court held that, on the narrow facts, the delayed catastrophic impairment determination rendered additional benefits overdue and interest was payable notwithstanding the insurer's good faith payments and prior denial.

Relying on the compensatory purpose of the SABS interest regime, the court awarded interest at two percent on attendant care benefits from August 1, 2005 and on housekeeping benefits from January 20, 2006.

Costs were left for further submissions if not resolved.