Michael Krygier-Baum

The insured property owner appealed the dismissal of its claim for coverage following a wall collapse, while the insurer appealed the finding of coverage for a subsequent arson fire at the same vacant building.

The Court of Appeal dismissed both appeals.

The wall collapse was not proven to be a fortuitous event.

For the fire loss, the insurer was bound by promissory estoppel preventing reliance on a vacancy exclusion, and its unilateral attempt to amend the policy to exclude arson was invalid under s. 124 of the Insurance Act for lack of written consent.

The Cardillo Parties sought review of a chambers judge's decision that denied them an automatic right of appeal under the Bankruptcy and Insolvency Act (BIA) and refused leave to appeal.

The chambers judge had found the underlying order to be procedural and that a single judge had the authority to determine the right of appeal and deny leave, applying the doctrine of paramountcy.

The Court of Appeal dismissed the Cardillo Parties' motion, affirming the chambers judge's findings that the decision was procedural, a single judge had the authority, and paramountcy applied, thus denying the appeal.

This endorsement determines costs following a trial involving two consolidated insurance claims: a Wall Collapse Claim and a Fire Loss Claim.

The plaintiffs (Lalani) succeeded on the Fire Loss Claim against Intact Insurance, being awarded substantial damages, while their Wall Collapse Claim was dismissed.

A negligence claim against the Broker (D.M. Edwards and CG&B) related to the Fire Loss Claim was also dismissed.

The court allocated costs 70% to the Fire Loss Claim and 30% to the Wall Collapse Claim.

Lalani was awarded partial and substantial indemnity costs against Intact for the Fire Loss Claim.

No costs were awarded for the dismissed claim against the Broker due to their adversarial position and the nature of their offer to settle.

Intact was awarded partial and substantial indemnity costs against Lalani for the dismissed Wall Collapse Claim, based on a public policy objective of promoting settlements.

This endorsement addresses two motions: the Trustee in Bankruptcy's motion to transfer and consolidate a foreclosure action (or parts thereof) from Hamilton to the Commercial List in Toronto with a transfer at undervalue (TUV) motion in the bankruptcy proceeding, and a cross-motion by the Cardillo Respondents to transfer the entire bankruptcy proceeding to Hamilton.

The core dispute, the "250 Mortgage Dispute," concerns the validity and priority of a first mortgage assignment and tacking of subsequent mortgages on the bankrupt's primary asset.

The court found compelling reasons for a common determination of the 250 Mortgage Dispute due to interwoven issues and potential for inconsistent findings.

The cross-motion to transfer the bankruptcy to Hamilton was dismissed, as the Toronto proceeding was well advanced and the request was deemed a delay tactic.

Instead of a full transfer or consolidation, the court ordered a trial of the 250 Mortgage Dispute as an issue within the Toronto bankruptcy proceeding under s. 187(8) of the BIA, granting full party participation rights to the Mortgagee Defendants and staying the relevant part of the Foreclosure Action in Hamilton.

Costs were awarded against the Cardillo Respondents.

This is an appeal from a Superior Court decision regarding a mortgagee's attempt to take possession of a commercial property after default.

The appellants, mortgagees, attempted self-help possession by changing locks, which was met with resistance from the respondent, mortgagor.

The application judge dismissed the mortgagees' request for an order restraining the mortgagor and declaring them in possession, finding they did not act peaceably.

The Court of Appeal dismissed the appeal, affirming the application judge's factual findings and her application of the legal principles of peaceable possession, as clarified in Hume v. 11534599 Canada Corp., 2022 ONCA 575.

The court found no palpable and overriding error in the lower court's conclusion that the mortgagees failed to take peaceable possession.

The plaintiffs sought coverage under their commercial property insurance policies for a wall collapse and a subsequent arson fire that destroyed their heritage building.

The insurer denied coverage for both claims, relying on wear and tear exclusions for the wall collapse and a vacancy exclusion for the fire.

The court dismissed the wall collapse claim, finding the plaintiffs failed to prove it was caused by a fortuitous event.

However, the court granted the fire loss claim, holding that the insurer's unilateral amendments to the policy were void under s. 124 of the Insurance Act and that the insurer was estopped from relying on the vacancy exclusion because it renewed the policy and accepted increased premiums with full knowledge that the building was vacant.

The plaintiffs were awarded over $5.8 million in damages.

A concurrent negligence claim against the plaintiffs' insurance brokers was dismissed.

This is an appeal from the dismissal of a claim for negligence and breach of contract against insurance brokers.

The appellant, owner of a commercial property destroyed by fire, alleged the brokers failed to secure adequate reconstruction cost insurance, leading to underinsurance and a co-insurance penalty.

The trial judge found the brokers discharged their duty by advising the appellant to obtain expert appraisal for reconstruction costs and that the appellant was a sophisticated client.

The Court of Appeal upheld the trial judge's decision, finding no error in the application of the duty of care or contractual obligations, and no reasonable apprehension of bias.

The appeal was dismissed.

The plaintiff's poultry processing plant was destroyed by fire and was significantly underinsured because the original insurance application understated the building's size.

The plaintiff sued her insurance broker and the insurer.

The insurer brought a motion for summary judgment to dismiss the claims against it, arguing it owed no duty of care to inform the insured or the broker of the size discrepancy it discovered during a subsequent property inspection.

The court dismissed the motion, finding that conflicting evidence regarding the purpose of the inspection and the parties' reliance required a full trial to determine whether a novel duty of care existed under the Anns/Cooper framework.

Following the dismissal of the plaintiff's action after a two-week trial, the defendants sought costs on a substantial indemnity basis from the date of their offer to settle.

The plaintiff argued for a significantly lower amount and opposed substantial indemnity.

The court determined that Rule 49.10(2) of the Rules of Civil Procedure, which provides for substantial indemnity costs, applies when a plaintiff obtains a judgment less favourable than an offer, not when their action is dismissed.

Furthermore, the court reiterated that substantial indemnity costs, outside of Rule 49.10, are reserved for cases involving egregious misconduct, which was not present here.

Consequently, the court awarded the defendants costs on a partial indemnity basis in the amount of $150,000, inclusive of disbursements and HST, after making adjustments for an expert fee.

The plaintiff, owner of a commercial property destroyed by fire, sued its insurance broker and brokerage firm for negligence and breach of contract, alleging underinsurance due to inadequate advice on reconstruction costs.

The court found that the defendants met the standard of care by advising the plaintiff's principal, a sophisticated client, to obtain a professional reconstruction estimate and by providing documents with co-insurance warnings.

The court also found no causation, as the plaintiff was motivated by cost-saving and would likely not have followed advice for a professional estimate.

Furthermore, the plaintiff failed to mitigate damages by not diligently rebuilding a property of like kind and quality, thus not qualifying for replacement cost coverage.

The action was dismissed.

A creditor sought to void a transfer of a matrimonial home to a spouse as a transfer at undervalue under section 96 of the Bankruptcy and Insolvency Act.

The debtor and his spouse purchased a home in joint names, with the spouse making non-monetary contributions through household management and childcare.

The Court of Appeal upheld the dismissal of the creditor's application, finding that the effective date of the transfer was more than one year before the bankruptcy event, and the creditor failed to prove insolvency or fraudulent intent at the time of the disposition.

The appellant protested outside town hall with a megaphone against a municipal by-law permitting a medical marijuana facility to be built near his home.

Town employees expressed fear for their safety, and the town issued a one-year trespass notice banning the appellant from all town property.

The application judge found the appellant's protest was violent and therefore not protected by the Charter.

The Court of Appeal reversed, holding that the appellant's protest was peaceful expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms, and that the trespass notice unjustifiably limited his freedom of expression.