Leslie Wright

Following a successful application declaring that an insurer owed a duty to defend, the applicant sought costs of $23,228.50 on a substantial indemnity basis.

The respondent did not dispute the applicant’s responsibility to fund its own defence but challenged the number of hours claimed.

The court considered the principles governing costs under Rule 57 and the Court of Appeal guidance emphasizing fairness and reasonableness rather than full indemnification.

The court found some duplication of effort and reduced the claimed amount.

Costs were fixed at $20,000 inclusive of HST plus disbursements.

The applicant sought a declaration that the respondent insurer owed it a duty to defend and indemnify in a slip-and-fall action brought by customers allegedly injured in the applicant’s store.

The applicant had been named as an additional insured under a contractor’s commercial general liability policy covering janitorial operations.

The insurer refused to defend, arguing the pleadings alleged independent negligence by the occupier and that issue estoppel applied because earlier litigation had rejected contractual indemnity claims against the contractor.

The court held that issue estoppel did not apply because the earlier proceedings addressed contractual indemnity rather than the insurer’s duty to defend.

Applying the pleadings rule, the court concluded the factual allegations potentially fell within policy coverage because the incident arose from janitorial operations, thereby triggering the duty to defend.

The insurer was ordered to indemnify the applicant for defence costs incurred in the underlying action.

Following dismissal of a civil action for battery and negligence against healthcare providers and security personnel, the successful defendants sought costs.

The defendants had previously offered to consent to dismissal of the action without costs prior to trial.

The court held that, as the defendants were completely successful, they were entitled to recover their costs.

Costs were awarded on a partial indemnity basis and fixed in a lump sum.

A hospital patient sued a hospital and its security guards for battery after being restrained in the emergency department while a physician issued a Form 1 under the Mental Health Act.

The patient argued the restraint was unlawful and caused a rotator cuff injury.

The court found the restraint caused the injury but concluded the conduct was legally justified under s. 15 of the Mental Health Act because the physician had reasonable grounds to believe the patient’s infection impaired her judgment and placed her at risk of serious bodily harm.

The force used by security was minimal and proportionate to preventing the patient from leaving before urgent surgery.

Because the restraint was authorized by statute, the elements of battery were not established.

The plaintiff brought a motion for leave under Rule 31.05.1 of the Rules of Civil Procedure to continue the examination for discovery of the defendant, his former lawyer, beyond the seven-hour limit.

The underlying action involved allegations of solicitor negligence regarding an improvident settlement of an accident benefits claim.

The court considered the complexity of the issues, the amount in dispute, and the interests of justice, concluding that an additional 2.5 hours of examination was warranted.

The motion was granted, and the defendant was ordered to pay partial indemnity costs.

The appellant, a former director of a condominium corporation, sought a declaration that the respondent insurer had a duty to defend him in an action brought by the corporation.

The application judge dismissed the application, finding the extension of coverage was not triggered and the negligence claim was merely derivative of deliberate conduct.

The Court of Appeal allowed the appeal, holding that the effective date for assessing the appellant's knowledge was the start of the successive policy periods, at which time a claim was not reasonably foreseeable.

Furthermore, the negligence claim was independent, triggering the insurer's duty to defend.