Martin P. Forget

The appellant's home was damaged during exterior restoration work when the contractor failed to properly seal areas against water.

The appellant's insurer denied coverage based on a 'faulty workmanship' exclusion.

The motion judge granted summary judgment to the insurer, finding the exclusion precluded claims for both direct and resulting damage.

The Court of Appeal allowed the appeal, holding that the 'faulty workmanship' exclusion must be interpreted narrowly to exclude only direct damage, preserving coverage for resulting damage under the all-risks policy.

The plaintiffs were awarded $35,000 each in Family Law Act damages following a motor vehicle accident.

The defendant argued the plaintiffs should be denied costs because their recovery fell below the $100,000 Simplified Rules threshold.

The court rejected this argument, finding it was reasonable to proceed under the ordinary procedure because the claims were part of larger companion actions involving allegations of contributory negligence.

The court awarded the plaintiffs $30,000 in fees plus disbursements and HST on a partial indemnity scale.

Following a trial in which the plaintiffs succeeded on Family Law Act claims for loss of companionship, guidance, and care, the court determined costs.

The defendant argued that no costs should be awarded because each plaintiff recovered less than $100,000 and should have proceeded under the Simplified Procedure rules.

The court held that where claims formed part of broader litigation involving companion actions and allegations of contributory negligence, it was reasonable to proceed as ordinary actions.

Exercising its discretion, the court rejected the defendant’s objections to the plaintiffs’ bill of costs and awarded partial indemnity costs together with disbursements and additional costs for the costs hearing.

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.

The moving party sought leave to appeal the dismissal of her motion for summary judgment.

The underlying action involved a motor vehicle accident where the moving party owned the vehicle driven by her uninsured daughter.

The moving party sought summary judgment on the basis that she did not consent to her daughter driving the vehicle.

The motions judge dismissed the summary judgment motion, refusing to admit discovery evidence and declining to apply the summary judgment framework.

The Divisional Court granted leave to appeal, finding good reason to doubt the motions judge's evidentiary rulings and concluding it was a matter of general importance to consider whether the motions judge's approach was consistent with the principles in Hryniak v. Mauldin.

Following a successful trial judgment in a fire loss subrogated claim, the plaintiff sought costs of $222,804.

The plaintiff had served a pre-trial offer to settle for $625,000, which was significantly beaten by the $810,016.75 judgment, entitling the plaintiff to partial indemnity costs up to the offer and substantial indemnity costs thereafter.

The defendant argued for a reduction based on a strict percentage of actual fees billed.

The court rejected the defendant's mathematical approach, finding the plaintiff's counsel's discounted hourly rates reasonable and the time spent appropriate given the complexity of the case.

The court awarded the plaintiff the full amount claimed.

This was a costs endorsement following the dismissal of a summary judgment motion concerning consent to operate a motor vehicle after a collision.

The insurer sought substantial indemnity costs, alternatively partial indemnity costs, against the moving defendant.

The court held that the motion itself was not brought in bad faith or unreasonably, although the materials tendered on the moving party's behalf were described as approaching unreasonable.

Applying the fairness and reasonableness approach to costs, the court fixed the insurer's costs at an all-inclusive amount of $10,000 payable forthwith.

The moving defendants sought leave to extend time to serve and file a jury notice in a long-standing civil action arising from a fire, where damages had already been agreed and only liability remained for trial.

Applying the governing Divisional Court framework, the court considered the circumstances of delay and whether the opposing parties would suffer prejudice.

The court found no meaningful delay, held that the streamlined liability-only issues left ample time to prepare for a jury trial, and rejected the asserted prejudice as unsupported.

The motion was granted.

Following a successful appeal, the appellants sought costs on a substantial indemnity basis of $54,456.00, arguing that the trial tactics of defence counsel warranted such an award.

The Court of Appeal found no basis in the conduct of the appeal for substantial indemnity costs.

The court fixed the costs of the appeal at $33,000 all-inclusive, payable to the appellants.

The appellant sought to add the respondents as defendants to an action arising from a 2009 oil spill.

The motion judge dismissed the motion, finding it was statute-barred.

On appeal, the appellant argued she only discovered the specific conduct giving rise to the claim during a 2013 examination for discovery.

The Court of Appeal dismissed the appeal, noting that the appellant's insurer had put the respondents on notice of a potential claim related to renovations as early as July 2010.

Therefore, the limitation period began to run no later than July 2010, and the 2014 motion to add them as defendants was statute-barred.

Following settlement of a motor vehicle injury action and discontinuance against two defendants who neither attended mediation nor contributed to the settlement, the court determined the costs consequences of the discontinuance.

The court held that those defendants were successful throughout, had consistently demanded costs, and there was no compelling basis to deny them partial indemnity costs merely because they had properly been named initially on the strength of the police report.

Applying the court's broad discretion under s. 131 of the Courts of Justice Act and Rule 57.01, and the fair-and-reasonable approach to fixing costs, the court reduced the amount sought and fixed costs at $20,000 inclusive of disbursements and taxes.

The appellants were involved in a rear-end motor vehicle collision and sued for personal injuries.

At trial, the judge failed to instruct the jury that the evidentiary burden shifts to the defendant in a rear-end collision.

Furthermore, the trial judge permitted the respondents to introduce extensive surveillance evidence that had not been disclosed in an affidavit of documents, leading to a trial by ambush.

The Court of Appeal allowed the appeal, substituted a finding of liability against the respondents, and ordered a new trial on the issue of damages due to the severe prejudice caused by the undisclosed surveillance evidence.

During a civil jury trial, the plaintiffs sought leave to argue that the jury could draw an adverse inference from a defendant's failure to testify.

The court held that the defendant's non-attendance had been adequately explained by his incarceration in another province and that inviting such an inference would be misleading.

The plaintiffs were permitted to comment on the absence of supporting evidence from the defendant on specific factual issues, but not to suggest that his evidence would have been detrimental to the defence.

The adverse inference issue was not left with the jury.

In a costs decision following an unsuccessful summary judgment motion in a catastrophic personal injury action, the court declined to reserve costs to the trial judge.

Applying the usual principle that costs follow the cause and the discretionary factors under Rule 57, the court held there was no divided success and no basis to depart from the ordinary rule.

The moving defendant was ordered to pay partial indemnity costs to both responding parties, with modest reductions to claimed time and an additional amount for the cost-fixing submissions.

On a trial motion, the defendants objected to evidence that one defendant apologized after an explosion causing burn injuries.

The court held that the Apology Act, 2009 did not apply retroactively to an apology allegedly made in 2006, before the statute came into force.

Applying the presumption against retroactive legislation, the court found the Act was directed to the making of apologies, not merely the future admissibility ruling at trial, and that retroactive application would alter the legal effect of a past event and potentially remove substantive insurance-related defences.

The apology evidence was therefore admissible.

In a civil jury trial arising from explosion-related burn injuries, the defendants moved to disqualify the plaintiffs' proposed expert on the basis of bias, advocacy, speculation, and opinions outside his expertise.

Applying the governing admissibility framework for expert independence, the court held that the reports demonstrated advocacy and objectionable inflammatory language, but the substance of the expert's opinions within his actual expertise was not so tainted as to be of minimal or no assistance.

The court therefore declined to exclude the evidence.

The expert was permitted to testify only within his area of expertise and subject to detailed restrictions on language, factual assumptions, and speculation.

Following the dismissal of a motion to add proposed defendants in a negligence action relating to a heating fuel oil spill, the proposed defendants sought costs of the motion.

They requested partial indemnity costs exceeding $17,000, while the plaintiff argued that $5,000 was reasonable.

The court reviewed comparable authorities and the principles governing costs under Rule 57, emphasizing that costs must be fair and reasonable rather than strictly reflective of actual expenditures.

Finding the hours claimed excessive but acknowledging the applicants’ success, the court fixed costs at $10,000 inclusive of disbursements and taxes.

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 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.