Michael Foulds

The defendant architect brought a motion for particulars of the plaintiffs' fresh as amended statement of claim regarding alleged design errors and cost overruns on a hotel redevelopment project.

The defendant also sought to strike a paragraph pleading the purchase of professional liability insurance.

The court dismissed the motion for particulars, finding the plaintiffs had provided sufficient detail in their response to enable the defendant to plead, and that further detail was a matter for discovery.

The court granted the motion to strike the insurance paragraph, finding it scandalous and irrelevant to the dispute.

The appellants, Trafalgar Insurance and Economical Insurance, appealed an arbitrator's decision in a priority dispute regarding statutory accident benefits.

The arbitrator had found that Arch Insurance was not the insurer of the vehicle involved in the accident because the vehicle was not owned or leased by Arch's named insured, despite being mistakenly listed on a fleet schedule.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error or error of law in the arbitrator's conclusion that the vehicle did not qualify as a 'described vehicle' under the OPCF 21A endorsement.

A related costs appeal was also dismissed as premature.

The defendants moved for summary judgment to dismiss a nuisance claim arising from construction noise outside permitted hours, relying on an exclusion clause in the agreement of purchase and sale (APS).

The court interpreted the APS and found that the exclusion clause did not apply to construction noise from an adjacent Phase II development occurring outside permitted hours.

The court also dismissed the separate motion to dismiss the claim against Tridel, finding insufficient evidence to establish Tridel's limited involvement and noting the elastic nature of the tort of nuisance.

The defendants' motion for summary judgment was dismissed.

The plaintiff condominium owner sought certification of a class action arising from allegedly defective balcony railings at a Toronto condominium complex.

After a railing detached and fell, engineering reports concluded the guard-rail assemblies did not comply with the applicable Ontario Building Code, requiring removal and replacement of all balcony railings and resulting in extended restrictions on balcony use.

The proposed class consisted of persons who owned, rented, or resided in units whose balconies were inaccessible during the remediation period.

The court held that the pleadings disclosed viable causes of action in negligence and breach of contract, that an identifiable class and common issues existed, and that a class proceeding was the preferable procedure with an adequate representative plaintiff.

Certification under the Class Proceedings Act, 1992 was therefore granted.

A receiver appealed from summary judgment dismissing its claim for indemnity under a trustee's errors and omissions policy after obtaining judgment against the insured trustee for breach of trust.

The court held that the insurer was entitled to rely on the dishonest acts exclusion because the trustee deliberately breached the trusts, knowingly exposed the beneficiaries to risk, and misappropriated trust funds for its own benefit.

The court further held that a prior order assigning to the receiver the 'proceeds from insurance coverage' did not assign the insured's separate cause of action for breach of the insurer's duty of good faith.

The receiver also had no direct good faith claim against the insurer, although it could return to the motion judge to seek directions on any other remedy if the insurer had deliberately frustrated the prior order.

The plaintiff, acting as receiver, obtained a judgment against a trust company for breach of trust.

The plaintiff then brought an action against the trust company's insurer to satisfy the judgment and moved for summary judgment.

The court found that the plaintiff had standing to sue the insurer based on an assignment of the right to sue, rather than under section 132(1) of the Insurance Act.

While the court determined that the policy initially provided coverage for the breach of trust, it ultimately held that coverage was excluded under policy provisions relating to dishonest acts and the gaining of an illegal advantage.

The court also found that the insurer's duty of good faith to the insured had been assigned to the plaintiff, leaving the issue of whether that duty was breached for trial.

In a coverage dispute arising from a judgment against a trust company, the defendant insurers sought to introduce additional evidence shortly before the hearing of a summary judgment motion after changing counsel.

The court considered whether the evidentiary record could be reopened to permit new affidavits, discovery answers, and documentary material.

The court held that a late change of counsel does not entitle a party to revise litigation strategy or add evidence contrary to established timetables and prior procedural orders.

Absent a satisfactory explanation for failing to include the evidence earlier, leave should not be granted.

The court permitted only a publicly available judicial endorsement already agreed to by the parties and refused all other proposed additions to the record.