Martin Forget

Following their successful defence against a motion to add them as third parties, the Proposed Defendants sought partial indemnity costs.

The moving party, Security National, argued the Proposed Defendants were merely intervenors and not entitled to costs.

The court found that the Proposed Defendants had standing and, even if considered intervenors, met the exception to the general rule against awarding costs to intervenors due to their significant interests and necessary participation.

The court awarded partial indemnity costs of $5,328 to People on Bikes and Gord Townley, and $2,667 to His Majesty the King.

The plaintiff's insurer brought a subrogated claim for damages resulting from a heating oil leak that required the demolition and reconstruction of the plaintiff's home.

The plaintiff alleged the defendant's oil burner technician negligently failed to replace a spin-on filter during an annual maintenance inspection.

The court admitted the plaintiff's expert evidence despite procedural defects, finding no prejudice to the defendant.

However, the court dismissed the action, concluding that the applicable standard of care was compliance with the Ontario Installation Code for Oil-Burning Equipment, which made filter replacement optional.

The technician had inspected the filter and found it in good condition, thereby meeting the standard of care.

The plaintiff brought a motion on the eve of trial to remove the defendant's lead counsel of record, alleging that the defence lawyer improperly used Summonses to Witness to obtain pre-trial disclosure of confidential medical records.

The plaintiff argued that the cover letters accompanying the summonses coerced witnesses into providing documents before trial to avoid attending court during the COVID-19 pandemic.

The court dismissed the motion, finding that a reasonably informed member of the public, reading the summons and cover letter as a whole, would not interpret them as an attempt to obtain improper pre-trial discovery.

The plaintiff's alternative request to quash the summonses was reserved to the trial judge.

The defendants in a medical malpractice action brought a motion for the production of documents from the plaintiffs' lawyer's file prior to cross-examinations on affidavits.

The affidavits were filed in support of the plaintiffs' pending motion to extend the time to set the action down for trial.

The defendants argued the plaintiffs waived privilege by referring to the lawyer's steps to advance the litigation.

The court found a limited waiver of litigation privilege regarding the fact and timing of the lawyer's communications with medical experts, but held that the plaintiffs were not required to produce the corroborating documents prior to the cross-examination.

The motion was largely dismissed, with the plaintiffs ordered only to have redacted corroborating documents available at the cross-examination.

The City of Kawartha Lakes appealed a Master's order compelling its solicitor to answer questions and produce documents on cross-examination regarding an affidavit she swore.

The Master found that the City had waived solicitor-client and settlement privilege by voluntarily disclosing detailed narratives of its conduct, legal advice, and settlement negotiations in the affidavit.

The Superior Court dismissed the appeal, upholding the Master's findings that the information was relevant and that the privileges had been waived.

The court also confirmed that section 239 of the Municipal Act does not create a new 'closed session' privilege.

The plaintiff's residential oil tank leaked, causing a significant environmental spill into Sturgeon Lake.

The plaintiff sued the fuel distributor (Thompson Fuels), the regulatory authority (TSSA), and the tank manufacturer (Granby) for negligence.

The court found Thompson Fuels 40% liable for failing to conduct a mandatory comprehensive inspection before delivering fuel.

The plaintiff was found 60% contributorily negligent for improper installation, failing to maintain the tank, introducing water into the tank, and delaying reporting the leak.

Claims against the TSSA and Granby were dismissed.

The court also assessed the reasonableness of the extensive remediation costs and dismissed the plaintiff's claim for statutory contribution under the Environmental Protection Act.

The plaintiff brought a motion for leave to amend his Statement of Claim to add a claim for contribution and indemnity under the Environmental Protection Act, following an Environmental Review Tribunal decision reducing a municipal cleanup order against him.

The defendants opposed the motion, arguing the proposed amendments were statute-barred and untenable.

The court granted leave to amend, finding that the legal issues regarding limitation periods and statutory interpretation were novel and not plainly and obviously untenable, and that the defendants would not suffer non-compensable prejudice.

The applicant, having successfully obtained a declaration that the respondent insurer had a duty to defend, sought costs of the application on a substantial indemnity basis.

The applicant argued that the respondent's position was contrary to established law and that the respondent caused undue delay.

The court found that while there were some delays, they did not warrant substantial indemnity costs.

Costs were awarded to the applicant on a partial indemnity scale in the amount of $18,000 inclusive of disbursements and HST.

The plaintiffs advanced Family Law Act claims for loss of care, guidance, and companionship following the death of a sibling in a motor vehicle accident.

Liability was not disputed, leaving quantum as the sole issue.

The court reviewed jurisprudence concerning the scope of compensable loss under s. 61 of the Family Law Act, emphasizing that such awards must be assessed objectively and do not compensate grief or emotional anguish.

Considering the unusually close lifelong relationship among the siblings, but distinguishing the case from those involving dependency or daily interaction, the court assessed damages for loss of companionship at $35,000 for each surviving sibling.

The applicant construction contractor sought a declaration that an insurer owed it a duty to defend as an additional insured under a project‑specific commercial general liability policy issued to a subcontractor.

The underlying action involved a pedestrian trip‑and‑fall allegedly caused by a sunken paver installed during a streetcar island construction project.

The insurer argued the policy only applied to liability arising from the subcontractor’s operations and that the pleadings did not allege such liability.

The court held that the pleadings contained undifferentiated negligence allegations against all defendants and could potentially attribute liability to the subcontractor’s work.

Applying established duty‑to‑defend principles, the court found that any ambiguity must be resolved in favour of the insured and concluded the insurer had a duty to defend.

An insurer appealed an arbitrator’s decision concerning a statutory loss transfer claim under the Insurance Act following payment of statutory accident benefits after a motor vehicle accident.

The appellant insurer argued the two‑year limitation period under the Limitations Act, 2002 began with the first request for indemnification and barred the claim because arbitration commenced more than two years later.

The court upheld the arbitrator’s conclusion that each request for indemnification creates a separate “rolling” limitation period that begins when the second‑party insurer fails to satisfy that request.

While the first request for indemnification was statute‑barred, later requests were within the limitation period and remained enforceable.

The court emphasized that loss transfer claims arise from statute rather than tort principles and are analogous to recurring contractual obligations.

Following the dismissal of the plaintiffs' personal injury claims at a jury trial, the court assessed costs payable to the successful defendants.

The plaintiff argued impecuniosity, but the court found he failed to meet the evidentiary threshold to prove an inability to pay.

The court awarded the defendants partial indemnity costs up to the date of their reasonable settlement offer, and substantial indemnity costs thereafter, fixing total fees at $180,000 plus HST and disbursements at $51,554.18.

In a certified class proceeding arising from explosions at a propane facility, class counsel moved for an order restraining an insurer and its counsel from communicating directly with class members during the court‑approved opt‑out period.

The insurer’s counsel had sent letters stating the insurer would opt insured class members out of the class action and pursue their claims through a subrogated action.

The court held the communications were misleading, interfered with the solicitor‑client relationship between class counsel and class members, and violated the Rules of Professional Conduct.

The court reaffirmed that insureds retain control of litigation until fully indemnified for both insured and uninsured losses.

An order was made prohibiting the insurer and its counsel from communicating with affected class members without court approval or consent of class counsel during the opt‑out period.

Following settlement of the main action concerning a defective retaining wall, the defendants sought indemnity from a third‑party contractor for costs they were required to pay the plaintiffs.

The court had previously found the contractor liable for defective construction and awarded damages and substantial indemnity costs to the defendants in the third‑party trial.

The remaining issue was what portion of the plaintiffs’ settlement costs should be borne by the contractor under the contractual indemnity clause.

The court held that although the defendants failed to mitigate some damages and not all claims were attributable to the contractor, the contractor’s refusal to accept responsibility and failure to meaningfully participate in settlement significantly increased litigation costs.

Balancing those factors, the contractor was ordered to reimburse 75% of the plaintiffs’ costs paid by the defendants.

The defendant, the owner of a cow that escaped onto a highway causing a motor vehicle accident, brought a motion to transfer two related personal injury actions from Toronto to Lindsay or Oshawa.

The plaintiffs, who resided in Ajax, received extensive medical treatment in Toronto and retained Toronto-based experts.

The court applied Rule 13.1.02(2)(b) and found that while the accident occurred in the Regional Municipality of Durham, the convenience of the treating specialists, medical experts, and counsel strongly favoured Toronto.

The court concluded that the defendant's proposed venues were not significantly better than the plaintiffs' reasonable choice of Toronto, and dismissed the motion with costs.

During a jury trial arising from a motor vehicle accident, the defendants brought a threshold motion under s. 267.5 of the Insurance Act to determine whether the plaintiff had sustained a permanent serious impairment of an important physical, mental, or psychological function.

The court assessed extensive medical evidence concerning shoulder injuries, surgeries, and alleged chronic pain.

While the court accepted that the accident aggravated a pre-existing shoulder condition requiring surgical treatment, it found the plaintiff’s evidence of ongoing limitations unreliable and inconsistent with medical opinions and surveillance evidence.

The court concluded that the plaintiff had not established, on a balance of probabilities, that any impairment was permanent, serious, or sufficiently impactful on important functions.

The statutory threshold was therefore not met and the claim for non‑pecuniary damages was barred.