Michael A. Cohen

The applicants, former directors of PACE Savings & Credit Union, sought a declaration that CUMIS General Insurance Company had a duty to defend them in an action brought by the Financial Services Regulatory Authority (FSRA) as administrator of PACE.

CUMIS denied coverage based on the 'Insured vs. Insured' exclusion in the Directors' and Officers' Liability Policy.

The court held that while the exclusion applied, the 'derivative action' exception restored coverage because the FSRA, acting as a 'person', brought the claim on behalf of the corporation.

The court also ruled that applicants facing fraud claims were entitled to independent counsel due to a conflict of interest, while those facing only negligence claims were not.

The plaintiffs brought a motion to enforce a $200,000 settlement under Rule 49.09, arguing they had accepted a 2016 offer from the defendants in 2020.

The court found that while the 2016 letter contained a valid Rule 49 offer that remained open for acceptance, the plaintiffs' purported acceptance in 2020 introduced new terms regarding mutual releases and costs involving parties not represented by the offeror's counsel.

Consequently, the purported acceptance was a counter-offer, and no agreement on essential terms was reached.

The motion to enforce the settlement was dismissed.

Ontario-resident plaintiffs sued a London hotel in Ontario after a slip and fall in a hotel bathroom during a vacation in the United Kingdom.

The defendant hotel moved to dismiss the action for lack of jurisdiction.

Applying the presumptive connecting factors set out in Club Resorts Ltd. v. Van Breda, the court held there was no real and substantial connection between Ontario and the dispute.

The hotel had no office, employees, or targeted marketing in Ontario, and the mere fact that the hotel could be booked through a Canadian travel rewards website did not establish that it carried on business in the province.

The court also found that no contract connected with the dispute was formed in Ontario.

In a certified class proceeding concerning alleged misrepresentations about a planned golf course in a residential subdivision, the defendants brought a motion for summary judgment arguing that the class members’ misrepresentation claims were barred by the two‑year limitation period under the Limitations Act, 2002.

The defendants contended that the limitation period began when a municipal public meeting and newspaper articles revealed that the golf course would not be built.

The court held that discoverability of the alleged misrepresentation was an individualized factual question for each class member and could not be determined on a class‑wide basis.

The court also held that a summary judgment motion against class members was procedurally unavailable because the limitation defence was not a certified common issue under the Class Proceedings Act, 1992.

The motion for summary judgment was dismissed.

The plaintiff brought a motion for summary judgment seeking a declaration that a binding final contract existed between the parties for the creation of visual artwork and that the defendant had repudiated that contract.

The court reviewed extensive conflicting evidence concerning negotiations, correspondence, and the parties’ expectations regarding execution of a formal written agreement contemplated by governing terms of reference.

Although the plaintiff had performed design work and received payment for preparatory efforts, the court found the evidentiary record raised substantial credibility issues and conflicting inferences about whether a final binding contract had been formed.

The court held that these disputes constituted genuine issues requiring a trial and could not safely be resolved on a summary judgment motion.