Mark Charron

The parties appeared to settle the terms of an order following earlier motions regarding an insurance coverage dispute for water damage.

The court agreed with the defendant brokers to add wording dismissing the action against them concerning an inapplicable 'under construction' exclusion.

The court also stayed the disclosure of certain documents pending the insurer's motion for leave to appeal.

Following a costs endorsement, the plaintiffs requested a reconsideration, arguing the court omitted to deal with elements of their discovery requests.

The court declined to reconsider, noting that the costs of the plaintiffs' motions for further discovery were already assessed and regrouped under the production issues in the earlier decision.

The court issued a costs endorsement for multiple motions heard on January 9, 2020, in an insurance dispute.

The plaintiffs were awarded partial indemnity costs against AXA and McLeod for successful production motions, and against AXA for a successful motion regarding the "building under construction" exclusion.

The defendants Irvin Hoffman and Cohen & Lord Insurance Brokers Limited also received partial indemnity costs from AXA for their successful motion on the "building under construction" exclusion.

The plaintiffs were awarded substantial indemnity costs against McLeod and the brokers for their unsuccessful summary judgment motions, as the moving defendants acted unreasonably by failing to adduce sufficient evidence on discoverability.

The court fixed specific amounts for each cost award.

The plaintiffs' property suffered two water damage incidents, leading to claims against their insurer (AXA/Intact), an independent adjuster (McLeod), and insurance brokers (Hoffman and Cohen & Lord).

The court addressed multiple motions: the defendants' summary judgment motions regarding limitation periods and an "under construction" exclusion, and the plaintiffs' motion for better discovery and an informed representative.

The court dismissed the defendants' limitation period arguments (without prejudice to trial), found the "under construction" exclusion inapplicable, and granted the plaintiffs' discovery requests, ordering the defendants to provide better affidavits of documents and an informed representative, and for McLeod to be examined for discovery.

The National Gallery of Canada retained Lafleur de la Capitale Inc. for landscaping and maintenance services and required Lafleur to add it as a named insured under its comprehensive general liability policy with Intact Insurance Company.

The Gallery was added as an additional insured only insofar as its legal liability arose vicariously out of Lafleur's operations.

When a Lafleur employee died while performing maintenance work at the Gallery's premises, two actions were commenced against the Gallery by the employee's spouse and family members.

The Gallery applied for a declaration that Intact had a duty to defend.

The application judge granted the application in brief reasons that failed to address exclusion clauses or the nature of the allegations in the statements of claim.

The Court of Appeal found the application judge's reasons inadequate and did not permit meaningful appellate review, allowing the appeal and remitting the application for a new hearing.

The main action for a motor vehicle accident settled before trial, but the third party refused to contribute, leading to a jury trial on liability apportionment.

The jury found the third party 35% liable.

The defendant sought costs of the third party action, relying on an offer to settle that the third party had rejected.

The third party argued the costs claimed were disproportionate to the damages.

The court rejected the proportionality argument, noting the third party's intransigence in forcing a trial over a low-value claim, and awarded the defendant $75,000 in costs on a partial and substantial indemnity basis.

The plaintiff corporation registered a construction lien for $184,493.87 against the defendants' property following a home renovation dispute.

The plaintiff subsequently abandoned the action, failed to post ordered security for costs, and its sole owner filed a consumer proposal.

The defendants brought a motion to dismiss the action and sought costs personally against the plaintiff's owner and its lawyer.

The court dismissed the action and awarded substantial indemnity costs against the plaintiff and its owner jointly and severally, finding the owner allowed the action to drift rather than discontinuing it.

The court declined to order costs against the plaintiff's lawyer, finding no evidence of bad faith, malice, or negligence in registering the lien.

Following a trial on liability for a motor vehicle accident where the deceased driver was found 80% responsible and the City of Ottawa and its bus driver 20% responsible, the court determined the costs payable to the successful plaintiffs.

The plaintiffs sought over $811,000 in costs and disbursements.

The court reviewed the factors under Rule 57.01, including proportionality, the complexity of the case, and the results achieved.

The court reduced the plaintiffs' claimed costs due to excessive hourly rates for students/paralegals, duplication of effort, and excessive time spent on certain stages.

The court awarded the plaintiffs $527,065.25 in fees and $143,531.25 in disbursements.

Additionally, the court granted a Sanderson Order requiring the unsuccessful defendants to pay the costs of the successful defendant insurer directly.

The plaintiffs were injured when the SUV they were passengers in ran a red light and was struck by an OC Transpo bus.

The driver of the SUV was killed and admitted to be primarily at fault.

The plaintiffs sued the bus driver and the City of Ottawa, alleging the bus driver was also negligent.

The court found that the bus driver, despite having the right of way, owed a duty of care to avoid the collision.

The court held that the bus driver breached the standard of care of a professional driver by speeding, failing to adjust his driving for the snowy and slushy road conditions, and momentary inattention.

Relying on expert accident reconstruction evidence, the court concluded that but for the bus driver's negligence, the accident could have been avoided.

Liability was apportioned 80% to the SUV driver and 20% to the bus driver.

The plaintiffs were wholly successful on a motion brought by the defendants regarding claims of privilege over certain documents and seeking the removal of the plaintiffs' counsel of record.

The plaintiffs sought full indemnity costs of $53,871.81.

The court found that while the plaintiffs were successful, they should have brought the motion to determine privilege themselves rather than forcing the defendants to do so.

The court declined to award substantial indemnity costs, finding the amount claimed disproportionate, and fixed costs at $25,000 plus HST and disbursements.

The defendants brought a motion seeking a declaration that certain inadvertently disclosed documents were subject to solicitor-client or litigation privilege, their return, and the removal of the plaintiffs' counsel of record.

The plaintiffs, former executives of the defendant organization suing for wrongful dismissal, argued that common interest privilege applied to the legal advice they received alongside the board of directors.

The court found that common interest privilege applied to the majority of the disputed communications and that privilege had been waived for others.

The motion to remove the plaintiffs' counsel was dismissed as grossly disproportionate, given that only one minor redaction was required and no prejudice was shown.

Following a motion where the moving party sought to bifurcate liability and damages at trial, the responding plaintiffs successfully opposed the motion but were unsuccessful on a jurisdictional argument regarding whether the court could order bifurcation without consent.

The court addressed the appropriate costs award arising from that motion.

Applying the principle that costs generally follow the event, the court held that the successful party should receive costs notwithstanding partial success by the moving party on a legal argument.

Costs were fixed on a partial indemnity basis and reduced to reflect the divided success.

The responding defendant was ordered to pay a lump sum amount inclusive of HST and disbursements.