Martin P. Forget

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.

The plaintiff sued a contractor for damages arising from water leakage into a basement foundation constructed under her trailer.

The court found that the contractor used a slab‑on‑grade method due to a high water table but failed to follow certain standard industry practices, including properly extending the waterproofing membrane and ensuring drainage measures consistent with the Building Code.

Expert evidence established that remedial work was necessary to prevent further water infiltration and bring the structure into compliance.

Claims for rental income, personal property damage, interior demolition, and general damages were largely rejected due to insufficient proof.

The court awarded damages for foundation remediation, anchoring of the trailer, interior repainting, and a contingency allowance.

Following successful summary judgment motions by the defendants in an insurance coverage dispute, the court determined the appropriate costs award.

The defendants sought substantial costs exceeding $140,000 combined.

Applying Rule 57 and the principle of proportionality, the court considered the novelty of the legal issue, the defendants’ delay in bringing the summary judgment motions, and the plaintiff’s good‑faith pursuit of a non‑frivolous claim.

The court also emphasized access to justice concerns given the modest value of the underlying claim.

Costs were significantly reduced and fixed at $30,000 payable to the insurer and $20,000 payable to the broker, inclusive of disbursements and HST.

The plaintiff was injured in a motor vehicle collision when the defendant driver failed to yield the right-of-way at an intersection.

The plaintiff suffered a mild traumatic brain injury, depression, and chronic pain, which substantially interfered with her employment and daily life.

The court found the defendant driver fully liable and his employer vicariously liable.

The court held that the plaintiff's injuries met the statutory threshold for non-pecuniary damages and awarded $100,000 in general damages, $50,000 for loss of competitive advantage, and $45,000 in Family Law Act damages.

The court also discharged the jury due to inflammatory opening statements by defence counsel.

The respondents' property was damaged by an oil spill after a tenant bypassed the furnace thermostat, causing it to overheat and overflow.

The appellant insurer denied coverage, relying on pollution and mechanical breakdown exclusions, and later argued the respondents failed to file a proof of loss.

The trial judge found for the respondents, concluding the insurer waived the proof of loss requirement and that neither exclusion applied.

The Court of Appeal dismissed the insurer's appeal, upholding the findings that the adjuster's letter constituted a waiver, the mechanical breakdown was caused by external interference rather than an internal defect, and the pollution exclusion required another operative exclusion to apply.

The plaintiffs brought a motion for leave to amend their statement of claim to add a corporate defendant alleged to own the property where an ATV accident occurred.

The proposed amendment was sought after the expiry of the two‑year limitation period under the Limitations Act, 2002.

The court considered whether the discoverability rule under s. 5 of the Act postponed the running of the limitation period because the plaintiffs did not know, and could not reasonably have known through due diligence, that the accident occurred on land owned by the proposed defendant.

The court found the plaintiffs had undertaken significant investigative steps after the accident and reasonably believed another party owned the land until survey evidence disclosed otherwise.

The court concluded that a letter from defence counsel denying ownership constituted the triggering event requiring renewed diligence and that the plaintiffs acted within two years of that event.

Leave was therefore granted to add the proposed defendant, without prejudice to it to plead a limitation defence.

The appellant municipality appealed a no-fault remediation order issued by the Ministry of the Environment under s. 157.1 of the Environmental Protection Act following a fuel oil spill that migrated onto municipal property.

The appellant sought to introduce evidence before the Environmental Review Tribunal to prove that others were at fault for the spill, relying on the 'polluter pays' principle.

The Tribunal excluded this evidence as irrelevant to the environmental protection objective of the Act.

The Court of Appeal upheld the Tribunal's decision, confirming that evidence of third-party fault is irrelevant to whether a no-fault order should be revoked.

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 the dismissal of the plaintiff's personal injury action arising from a bicycle accident allegedly caused by the defendants' dog, the defendants sought substantial indemnity costs of over $294,000.

The court rejected the request for substantial indemnity costs, finding that the defendants' settlement offers lacked a substantive element of compromise and the plaintiff's conduct was not reprehensible.

Furthermore, the court reduced the defendants' partial indemnity costs by 40% to penalize their counsel's failure to disclose surveillance evidence, veterinary records, and other documents prior to trial, which undermined the policy of early settlement and full disclosure.

The plaintiffs' home and personal property were damaged by a fire.

They sued their insurer and the restoration contractor for incomplete and deficient repairs, unpaid additional living expenses, and damaged or destroyed personal property.

The insurer alleged the plaintiffs committed fraud in their proofs of loss.

The court found no fraud, holding that the insurer breached its duty of good faith by raising the fraud allegation as a high-handed litigation strategy.

The court awarded the plaintiffs damages for the deficient home repairs, additional living expenses, and lost personal property, along with $100,000 in punitive damages against the insurer.

The City of Kawartha Lakes appealed a decision of the Environmental Review Tribunal upholding a Ministry of the Environment order requiring the City to remediate environmental contamination on its property.

The contamination was caused by a furnace oil leak from an adjacent private property.

The City argued it was an innocent owner and the Tribunal erred by excluding evidence regarding who was at fault for the spill.

The Divisional Court dismissed the appeal, finding that the Tribunal's decision to exclude fault evidence was reasonable, as the Environmental Protection Act's primary purpose is environmental protection, and fault-finding is better suited for civil courts.

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.

In an insurance coverage trial arising from an oil spill in a mixed-use commercial building, the court addressed policy exclusions, proof-of-loss compliance, waiver, and quantification of property and business interruption damages.

The court held the insurer could not rely on late-raised proof-of-loss and appraisal defences given waiver language in the adjuster correspondence and pleading conduct, and rejected reliance on exclusions for pollution and mechanical or electrical breakdown on the evidentiary record.

The court accepted that extensive structural remediation was reasonable and necessary, and assessed repair costs using expert-supported mid-range estimates.

The court also awarded limited relocation and rental loss damages under policy terms, while declining consequential damages beyond the pleaded contractual claim.

Total assessed damages were $68,485, subject to potential adjustment based on settlement terms with a former co-defendant.

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.

The applicant sought a declaration that his home insurer owed both a duty to defend and indemnity exposure in an underlying Family Law Act action arising from a fatal drug overdose on his property.

Applying the three-step framework from Supreme Court of Canada authority, the court characterized the pleaded claims as genuinely grounded in negligence rather than merely relabelled intentional or criminal wrongdoing.

The court held the negligence claims were non-derivative and potentially within policy coverage for negligent acts.

The insurer was therefore required to provide a defence and coverage for non-excluded negligent claims in the underlying action.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant was ordered to pay the respondent's costs of the appeal on a partial indemnity scale, fixed at $8,000 inclusive of disbursements and GST.

The appellant attended a party at the respondent's property and fell from a newly constructed deck that lacked a railing, sustaining a fractured ankle.

At trial, the jury dismissed the appellant's negligence action, finding that the respondent did not fail to take reasonable care and that the appellant failed to take reasonable care for her own safety.

The appellant appealed, arguing the jury's verdicts on liability and damages were perverse and that the trial judge erred in admitting certain photographs.

The Court of Appeal dismissed the appeal, finding there was an evidentiary basis for the jury's verdict, including evidence that the respondent had warned the appellant about the lack of a railing.

The appellants' home was damaged by fire.

Their insurer denied their claim, alleging a material change in risk and false statements.

The insurer paid the mortgagee under the Standard Mortgage Clause and then sued the appellants for subrogation, obtaining summary judgment.

On appeal, the Court of Appeal held that an insurer's right to subrogation under the Standard Mortgage Clause requires two preconditions: payment to the mortgagee, and establishing that it has no liability to the insured mortgagor.

Because the insurer's liability to the insured was a genuine issue for trial, the summary judgment was set aside and the actions were consolidated.