Michael Connolly

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

The Plaintiff brought a motion for leave to issue a Fresh as Amended Statement of Claim, consolidate two proceedings, and add Modern Cleaning Concept Inc. as a defendant after the limitation period.

The proposed defendant, Modern Cleaning, opposed the motion, arguing lack of reasonable diligence by the Plaintiff and non-compensable prejudice.

The court applied the Morrison v. Barzo framework, finding that the Plaintiff exercised reasonable diligence in discovering the claim against Modern Cleaning, particularly given Wal-Mart's delayed disclosure of the cleaning contractor.

The court also found that Modern Cleaning would not suffer non-compensable prejudice.

The motion was granted.

This is an appeal concerning the application of the doctrine of equitable contribution between two insurers, Northbridge and Aviva, for the defence and indemnification of a shared insured, Mr. Daneshvari, in an underlying professional misconduct action.

Both insurers' policies contained "other insurance" clauses purporting to be excess.

The Court of Appeal upheld the application judge's finding that the policies were irreconcilable, requiring equal contribution.

The court affirmed that the standard of review for interpreting these specific "other insurance" clauses was palpable and overriding error, not correctness, as they were not standard form contracts with significant precedential value.

The appeal was dismissed, and Aviva was ordered to pay costs to Northbridge.

The defendants brought a motion to stay two actions commenced in Ontario, arguing that British Columbia was the more appropriate forum based on contractual choice of law and jurisdiction clauses related to a construction project.

The plaintiff opposed the motion and brought a cross-motion to compel arbitration.

The court granted the defendants' motion to stay, finding that despite Ontario having jurisdiction simpliciter, British Columbia was the forum conveniens due to the clear contractual terms and the location where the factual matters arose.

The plaintiff's cross-motion to compel arbitration was dismissed, with the court noting that the arbitrator should determine their own jurisdiction in the first instance.

Costs were awarded to the successful defendants.

The applicants, CRD Construction Ltd. and Rob Leshuk, sought a declaration that their insurers, Aviva Insurance Company of Canada and Economical Mutual Insurance Company, had a duty to defend them against a counterclaim and to reimburse their legal fees.

The court found that Economical had waived its right to deny the duty to defend due to a reservation of rights letter and its acceptance.

However, the court found that the applicants' breaches of the duty of cooperation constituted non-compliance, making relief from forfeiture unavailable against Aviva, and that the applicants failed to prove their conduct was reasonable for relief from forfeiture against either insurer regarding the duty of cooperation.

Economical was ordered to defend and reimburse the applicants, while the application against Aviva was dismissed.

The plaintiff insured sought coverage after his tenants caused an explosion and fire while attempting to extract marijuana resin.

The insurer denied coverage based on a marijuana exclusion clause.

The plaintiff argued that a subsequent amendment to the Insurance Act (s. 129.1) protecting innocent insureds should apply.

The court granted summary judgment to the insurer, finding that the marijuana exclusion clause applied irrespective of the amendment because it excluded a specific use of the property regardless of the insured's knowledge.

Furthermore, the court held that the amendment could not be applied retrospectively as it would affect the insurer's vested contractual rights.