Michael Burgar

The appellant insurer appealed a master’s order compelling answers to discovery refusals and production of documents from its claims file in litigation arising from a propane facility explosion and a coverage dispute.

The insurer asserted solicitor-client privilege and litigation privilege over memoranda, meeting notes, and claims file materials generated during the coverage investigation.

The court held that an appeal from a master’s decision is not a de novo hearing and is limited to correcting errors of law, wrong principles, or palpable and overriding errors.

The insurer failed to establish an evidentiary basis for either solicitor-client privilege or litigation privilege because no affidavit evidence demonstrated that the documents contained legal advice or were created for the dominant purpose of litigation.

The master’s order requiring production was therefore upheld.

The plaintiffs brought a motion to set aside a registrar's order dismissing their action for delay.

The action, which sought $25 million in damages against a condominium superintendent and related parties for alleged criminal acts, was dismissed after the plaintiffs inadvertently missed a court-ordered deadline to set the action down for trial.

The Master applied the Reid factors and found that the plaintiffs moved promptly to set aside the order, the delay was adequately explained and resulted from inadvertence, and the defendants suffered no actual prejudice.

The motion was granted and the dismissal order was set aside with no order as to costs.

A costs decision following a summary judgment motion concerning the priority of motor vehicle liability insurance coverage under s. 277 of the Insurance Act.

The moving parties sought full indemnity costs exceeding $39,000, arguing that where insurers share a duty to defend, equitable principles require full reimbursement of defence costs.

The third party insurer opposed, submitting the dispute concerned priority of coverage rather than the existence of a duty to defend, and that only modest partial indemnity costs should be awarded.

The court held that priority disputes between insurers do not give rise to the same contractual obligation to fully indemnify defence costs as duty-to-defend cases.

Considering delay in bringing the motion and the unsettled nature of the law, the court awarded reduced costs.

The defendant landlord brought a motion for summary judgment to dismiss a subrogated claim by the plaintiff tenant's property insurer.

The claim arose from water damage caused by a burst pipe.

The landlord relied on an exculpatory clause in the commercial lease stating it was not liable for damage to the tenant's property 'however caused'.

The court dismissed the motion, finding that the lease only required the tenant to obtain public liability insurance, not property insurance, and that the scope and application of the exculpatory language raised genuine issues requiring a trial.

The plaintiff brought a motion under subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure seeking leave to amend its statement of claim to add a new defendant in a property contamination dispute.

The proposed defendant opposed the amendment on the basis that the applicable limitation period under the Limitations Act, 2002 had expired.

The court held that the moving party failed to provide sufficient evidence to rebut the presumption of discoverability under s. 5(2) of the Act, including evidence of when the claim was discovered or what investigative steps had been taken.

Because the evidentiary record did not establish any doubt about the expiry of the limitation period, the proposed claims were considered clearly statute barred.

The motion to amend was dismissed, though the moving party was permitted to renew the motion with proper evidence within 45 days.

The defendants were involved in a motor vehicle accident while driving a 'loaner' vehicle provided by a dealership while their own vehicle was being repaired.

The defendants' personal insurer and the dealership's garage insurer disputed which policy should respond in priority.

The court found that the loaner vehicle was not a 'leased' vehicle under the Insurance Act, but rather a temporary substitute vehicle.

The court held that the dealership's garage policy was an owner's policy and therefore stood as first loss insurance.

The motion for summary judgment was granted, requiring the garage insurer to defend and indemnify the defendants.

The appellant appealed a decision finding that the respondent insurer had no duty to defend him against a landlord's statement of claim.

The landlord alleged arson, breach of contract, and negligence.

The Court of Appeal dismissed the appeal, holding that the arson claim fell under the intentional act exclusion, the breach of contract claim fell under the contractual liability exclusion, and the negligence claims were merely labels for what were in substance breaches of contract.

The appellant insurer sought a declaration that it had no duty to defend or indemnify the respondent insured, a gas bar operator, against a claim for environmental contamination caused by a gasoline leak.

The application judge dismissed the application, finding the insured was not an 'active industrial polluter' and the claim sounded in negligence.

The Court of Appeal allowed the insurer's appeal, holding that the pollution exclusion clause unambiguously applied to the known risk of pollution from operating a gas station, and was not limited to active industrial polluters.

The appellants appealed a jury verdict dismissing their claim under the Dog Owner's Liability Act.

They argued the trial judge erred in instructing the jury on the meaning of 'attack' and in admitting hearsay evidence.

The Court of Appeal dismissed the appeal, finding that the jury instructions did not lead to error and noting the lack of objections at trial regarding both the instructions and the hearsay evidence.

The plaintiff sought leave to appeal a costs order of $32,307.14 made following a three-day trial under the Simplified Rules where both the claim and counterclaim were dismissed.

The plaintiff argued the costs were disproportionate and inconsistent with similar cases.

The court dismissed the motion, finding no good reason to doubt the correctness of the trial judge's order and noting that the trial judge was alive to the issue of proportionality.

The appellants brought a derivative claim under the Family Law Act.

The principal claim was statute-barred, but no claim had been brought by the Estate.

The Court of Appeal dismissed the appeal, affirming that if the principal claim is statute-barred, the derivative claim is also barred, regardless of whether the Estate brought a claim.

The insured, a pizza delivery company, was sued after a pedestrian was struck by one of its delivery vehicles.

The plaintiff alleged the insured's '30 minutes or free' delivery policy and failure to screen drivers constituted negligent business practices.

The insurer denied a duty to defend, relying on an automobile exclusion clause in the commercial general liability policy.

The application judge found the business practice claims were independent of the automobile use and ordered the insurer to defend.

The Court of Appeal allowed the insurer's appeal, holding that the non-automobile claims were derivative of the negligent operation of a motor vehicle and therefore caught by the exclusion clause.

The appellant sought to alter the costs award made by the trial judge.

The Court of Appeal reviewed the parties' submissions and found no basis to alter the trial judge's costs award.

The appellant appealed an order striking his statement of claim and upholding his expulsion from the respondent yacht club.

The appellant argued he lacked proper notice of the board meeting that led to his expulsion and that the board was biased.

The Court of Appeal upheld the motion judge's findings that proper notice was given and no disqualifying bias existed.

However, the Court found the motion judge erred in striking one paragraph of the statement of claim which pleaded a potentially defamatory statement and discoverability.

The appeal was allowed in part to permit the appellant to file an amended statement of claim regarding that single allegation, but otherwise dismissed with costs to the respondents.

The primary insurer defended an action arising from a motor vehicle accident and sought equitable contribution for defence costs from the excess insurer.

The excess insurer was not notified of the claim until four and a half years after the accident and was not plainly at risk until shortly before trial.

The application judge ordered the excess insurer to pay a proportionate share of the defence costs.

On appeal, the Court of Appeal held that an excess insurer's obligation to contribute to defence costs is premised on the existence of a duty to defend, which only arises upon notice of a claim.

Given the late notice and the fact that the excess insurer did not sit back and benefit from the primary insurer's work, it was not fair or equitable to require contribution.

The appeal was allowed and the application dismissed.

The insurer, Halifax, appealed an order to pay the insured's legal costs, and the insured, Innopex, cross-appealed a summary judgment declaring Halifax had no duty to defend it in a US trademark infringement lawsuit brought by Gucci.

The Court of Appeal allowed the cross-appeal, finding that the motion judge erred by relying on extrinsic evidence to determine the 'true facts' rather than relying on the pleadings.

The Court held that the Gucci complaint contained allegations that could potentially fall within the 'advertising liability' coverage and the 'title' exception to the trademark exclusion in the policy.

Halifax was ordered to defend the action, and the summary judgment dismissing Innopex's counterclaim for punitive damages was set aside.

The infant plaintiff sustained catastrophic injuries when he rode his bicycle down a ramp at an apartment building owned by the appellant Turret Realties Inc. and into the path of a vehicle driven by the appellant Anne Busk.

The trial judge found Turret 50% liable under the Occupiers' Liability Act and the plaintiff 50% contributorily negligent, while dismissing claims against the driver.

Turret appealed on multiple grounds, including reasonable apprehension of bias, liability, and damages.

The plaintiff cross-appealed regarding contributory negligence, loss of interdependent relationship, and the refusal to award a management fee.

The Court of Appeal dismissed the main appeal and allowed the cross-appeal in part, awarding a management fee of $302,989 and adjusting the tax gross-up accordingly.

The appellant municipality appealed a slip and fall judgment arising from an icy pedestrian walkway leading to and from a recreation complex.

The central issue was whether the higher statutory standard under s. 284 of the Municipal Act governed, or whether the ordinary occupier's duty under s. 3(1) of the Occupier’s Liability Act applied.

The court held that the dominant purpose of the walkway was access to the complex, not use as a public sidewalk or highway, and therefore the Occupier’s Liability Act governed.

The finding of negligence was supported by the evidence, and the appeal was dismissed with costs.