Martin P. Forget

The court addressed three post-trial motions: a set-off dispute under a Pierringer agreement, the plaintiff's motion to vary judgment to include a common law negligence claim for an environmental order, and the defendant Thompson Fuels' motion to vary judgment based on alleged errors.

The court ruled that set-off from the Pierringer agreement would only apply if the settlement exceeded the plaintiff's total loss (100% of damages caused by defendants, not just the non-settling defendant's apportioned share).

Both Rule 59.06(1) motions were dismissed, as they sought to re-argue the case or correct judicial reasoning rather than accidental slips or omissions.

Following the dismissal of the plaintiff's action against her insurance company and broker after a nine-day trial, the defendants sought costs on a substantial indemnity basis.

The defendants argued that the plaintiff made unsupported allegations of bad faith and failed to accept reasonable offers to settle.

The plaintiff argued for a reduced costs award based on the principle of proportionality, given the modest size of her claim.

The court declined to award substantial indemnity costs, finding that doing so would require the plaintiff to pay costs totalling more than four times the value of her claim.

Applying the principle of proportionality and the factors under Rule 57, the court awarded costs on a partial indemnity basis, fixing costs at $175,000 for the insurer and $115,000 for the broker.

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.

During a motor vehicle accident trial, the plaintiffs objected to the admissibility of a defence psychiatrist's evidence, Dr. Robert Hines.

Initially, the objection concerned Rule 53.03, but it was withdrawn based on the *Westerhof* decision.

The court then raised a concern regarding the defence's attempt to both file Dr. Hines' reports under s. 52 of the *Evidence Act* and call him as a witness, which is contrary to established case law (*Ferraro v. Lee*, *Iannarella v. Corbett*).

Despite the defence counsel's prior involvement in *Iannarella* and the court's gatekeeping role, the defence insisted on calling the witness.

The court, exercising its discretion, allowed Dr. Hines to testify but ordered his reports removed from the jury's document brief to mitigate prejudice to the plaintiffs, while reserving the issue of costs for later consideration.

The plaintiff, Diana Lynn Monk, sued her insurer (Farmers’ Mutual) and broker (Muskoka Insurance) for property damage to her log home caused by a contractor's negligent restoration work.

The court found that while the damage was covered under the "all-risk" homeowner's policy, the plaintiff failed to provide timely notice of the loss as required by Statutory Condition No. 6.

Despite the court's finding that the breach was imperfect compliance rather than non-compliance, the plaintiff's conduct was deemed unreasonable, and the insurer suffered significant prejudice due to the delay.

Consequently, the court denied relief from forfeiture and dismissed the claims against both the insurer and the broker.

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 Technical Standards and Safety Authority and Thompson Fuels sought costs against the Gendrons following a motion regarding the Gendrons' Notices of Allegation and proposed Amended Notice of Appeal.

The Tribunal found that while the Gendrons' late delivery of the Notices of Allegation in non-compliance with the Tribunal's Rules constituted unreasonable and frivolous conduct, the moving parties did not demonstrate undue prejudice.

The Tribunal declined to exercise its discretion to award costs, noting that a previous sanction prohibiting the Gendrons from pursuing the allegations was sufficient penalty.

The appellants appealed municipal orders to pay costs issued by the City of Kawartha Lakes under s. 100.1 of the Environmental Protection Act relating to the clean-up of a furnace oil spill.

The Tribunal allowed the appeal of the co-owner, finding she was not the owner or person in control of the pollutant immediately before the discharge.

The Tribunal allowed the owner's appeal in part, reducing the total amount payable to $313,005.08, but dismissed his arguments that the consulting and monitoring costs were unrelated to preventing adverse effects or were unreasonable.

The defendants brought motions for summary judgment to dismiss the plaintiff's action for property damage insurance coverage.

The motion judge initially granted summary judgment based on a coverage exclusion, but the Court of Appeal reversed this finding and remitted the limitation period issue back to the motion judge.

The motion judge dismissed the summary judgment motion regarding the limitation period, finding that disputed conversations between the plaintiff and her insurance broker raised significant credibility issues that required a trial.

This endorsement addresses the costs of a personal injury action following an eleven-week jury trial.

The jury awarded Zacharia Lane $20,000 in general damages and $8,160 for past loss of income, and Alexis Koch $30,000 in general damages.

The court considered the application of Rule 76.13(3) regarding simplified procedure costs, finding it reasonable for plaintiffs to have pursued the ordinary procedure.

The court also applied Rule 49.10 and Rule 49.13 concerning offers to settle.

It found the defendants' May 16, 2014, offer to Alexis Koch more favourable than her jury verdict, impacting her costs entitlement.

However, the offer to Zacharia Lane was not found to be more favourable.

The court ultimately made specific costs awards, balancing the parties' success, offers to settle, and the excessive length of the trial.

The appellant, the estate of Celina Carroll, appealed an interlocutory order dismissing its motion for summary judgment.

The central issue was whether the driver of the vehicle had express or implied consent to possess it at the time of the motor vehicle accident.

The Divisional Court held that while the driver's discovery transcript was admissible, the deceased owner's transcript was not admissible on the motion.

The court upheld the motion judge's finding that the issue of consent could not be determined on the record without a trial and dismissed the appeal.

The City of Kawartha Lakes brought a motion to strike portions of the appellants' Notice of Appeal, witness statements, and Notices of Allegation regarding an order to pay for the clean-up of a heating oil spill.

The City argued that the Tribunal's jurisdiction under s. 100.1(15) of the Environmental Protection Act is strictly limited to specific considerations, excluding issues of fault, fairness, and financial hardship.

The Tribunal agreed, finding that s. 100.1(15) is a 'consider only' provision that precludes a broad 'new hearing' approach.

The Tribunal also ruled that it lacks jurisdiction to adjudicate claims for contribution and indemnification, which must be pursued in civil court.

The motion was granted, and the scope of the hearing was restricted accordingly.

Following an unsuccessful motion for summary judgment by the moving defendants, the successful plaintiffs and co-defendants sought their costs.

The court awarded costs on a partial indemnity scale, finding the motion was neither frivolous nor vexatious but was exceedingly complex.

The court excluded the plaintiffs' disbursements for expert reports, determining that those reports were necessary for trial in any event and should be assessed by the trial judge.

Total costs of $16,234.68 were awarded to the plaintiffs and $8,243.83 to the co-defendants.

Following a successful appeal, the appellant sought costs for both the motion and the appeal.

The Court of Appeal awarded the appellant $90,000 in costs for the motion on a partial indemnity basis, payable by the respondents.

However, the court declined to award costs for the appeal, as the appellant's counsel had explicitly stated during the hearing that he was not seeking appeal costs due to the novelty of the issue and access to justice concerns.

The Environmental Review Tribunal issued a procedural order limiting the scope of the proceeding to matters set out in s. 100.1(15) of the Environmental Protection Act.

The Tribunal struck portions of the appellants' notices of appeal, witness statements, and document briefs that did not relate to this section.

The Tribunal also accepted the withdrawal of certain notices of allegation and witness statements, and deferred costs applications to a later date.

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 Environmental Review Tribunal granted party status on consent to the Technical Standards and Safety Authority, Doug C. Thompson Fuels Ltd., and Les Reservoirs D'Acier de Granby Inc. The status was granted for the limited purpose of responding to a motion brought by the City of Kawartha Lakes regarding the permissible scope of the Gendrons' appeals and Notices of Allegation.

The defendants, Bryan Watt and Bruce E. Smith Ltd., brought a motion for summary judgment to dismiss the plaintiffs' claims and all crossclaims against them arising from a three-vehicle collision on the QEW.

The moving parties relied on expert evidence suggesting the defendant driver's reaction time was reasonable.

The plaintiffs relied on competing expert evidence suggesting the accident was avoidable.

The court dismissed the motion, finding that the conflicting factual evidence and competing expert opinions regarding perception-response time and looming required a full trial to resolve.

The appellants, Wayne and Liana Gendron, brought a motion to adjourn a scheduled Environmental Review Tribunal hearing regarding an order to pay clean-up costs for a furnace oil spill.

The appellants argued that the hearing should be adjourned until after the conclusion of a parallel civil action brought by the respondent municipality.

The Tribunal dismissed the motion, finding that the municipality had undertaken not to pursue its civil action if the Tribunal hearing proceeded, thereby eliminating the risk of duplicative proceedings and double recovery.

The appellants brought a motion to adjourn the hearing of their appeals regarding an order to pay for the clean-up of a spill.

The Environmental Review Tribunal dismissed the motion to adjourn, with reasons to follow, and directed that a status telephone conference call be held to address procedural issues.