Louise F. Moher

The appellants, former lawyers at a firm where the principal misappropriated trust funds, appealed a motion judge's refusal to set aside or vary a garnishment order against the firm's professional liability insurer.

The respondents, who were owed $3.6 million, sought to exhaust the $1 million policy limits.

The appellants argued they needed the policy for defence costs against threatened claims by the respondents.

The Court of Appeal allowed the appeal in part, varying the order to require the respondents to release any claims against the appellants relating to the trust funds as a condition of receiving the garnished insurance proceeds, noting the respondents could not articulate any substantive claim against the appellants.

The appellants appealed the trial judge's determination that the respondent met the statutory threshold for serious impairment of an important physical, mental, or psychological function following a motor vehicle accident.

They also appealed the jury's award of $16,000 for past lost income.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's threshold determination or the jury's modest award for past lost income, noting the trial was brief and simple.

The moving parties sought leave to appeal an interlocutory injunction that prevented them from directly soliciting the responding party's customers after their business relationship deteriorated over allegations of contaminated products.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the RJR Macdonald test for an injunction, including the findings of a serious issue to be tried, irreparable harm to the responding party's business relationships, and the balance of convenience favouring the responding party.

The defendants brought a motion for leave to appeal a post-certification decision that dismissed their request to amend the class definition by inserting cut-off dates for three models of allegedly defective defibrillators.

The defendants argued the motions judge erred in placing the burden of proof on them and in finding some basis in fact for the plaintiffs' proposed dates.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no reason to doubt the correctness of the motions judge's decision, and that the burden was correctly placed on the defendants to justify amending the certification order.