Michael Van Dusen

This was a costs decision following a jury verdict in an insurance coverage dispute arising from a commercial fire loss.

The plaintiff recovered the balance of an endorsement after the insurer denied liability despite an alleged promise to pay if a code-compliant structure was rebuilt.

The court held that full indemnity costs were not justified on the misconduct record, but gave elevated weight to indemnity, the insurer's serious misconduct, and a reasonable withdrawn offer to settle under Rule 49.13.

Costs were fixed at $200,000 plus HST and $50,000 in disbursements, and prejudgment interest was awarded at an averaged 2.15% rate over the ten-year period.

A personal injury claim arising from a slip and fall on January 3, 2019 on the premises of St. Lawrence College of Applied Arts and Technology in Cornwall, Ontario.

The plaintiff suffered a significant fracture injury when he slipped on a sidewalk leading to a medical office building.

Damages were agreed; the trial concerned liability only.

The defendants were the College and its winter snow and ice removal contractor.

The court found that the defendants breached their duty of care under the Occupiers Liability Act by using pure salt on sidewalks in extremely cold temperatures (-10°C or colder) when salt is chemically ineffective, and by failing to use sand or ice melt as required by contract or recommended by best practices.

The court found the defendants liable and found no contributory negligence on the plaintiff's part.

This is the fourth ruling in a motion brought by the plaintiffs for approval of a settlement concerning minor plaintiffs' claims, management of net settlement funds, a contingency fee retainer agreement, and the solicitor-client account.

The court had previously approved the settlement for both minor plaintiffs and the solicitor-client account on a quantum meruit basis, but dismissed the request for approval of the contingency fee agreement.

This ruling specifically addresses the final determination of the minor plaintiffs' pro-rata contributions to the solicitor-client account and the net settlement amounts payable to them, while also providing detailed directions for the revision of the draft order.

The plaintiffs brought a motion for approval of a settlement of the minor plaintiffs' claims, the proposed management of the net settlement funds, and the proposed solicitor-client account.

In this third interim ruling, the court adjourned the motion to permit the plaintiffs to file additional evidence regarding the specific calculations for the minor plaintiffs' pro-rata contributions towards the solicitor-client account and the net amounts payable to each minor.

The court also directed the plaintiffs to serve the Office of the Children's Lawyer and to submit a revised draft order complying with Form 59A.

The Plaintiff, W. James D. Helmer, brought a motion seeking leave to amend his Statement of Claim against Economical Mutual Insurance Company.

The proposed amendments sought to particularize claims of waiver, misrepresentation, and promissory estoppel, and to clarify the claim for breach of duty to act in good faith, related to an insurance policy's 6558 Extension.

Economical opposed, arguing non-compensable prejudice due to delay and that new claims were asserted outside the limitation period.

The court also addressed a preliminary objection to the defendant's affidavit evidence.

The motion was granted, finding no actual non-compensable prejudice and that the amendments did not constitute new causes of action, leaving the limitation period dispute for trial.

This interim ruling addresses a motion for court approval of a minor settlement, management of net settlement funds, and solicitor-client account.

While the solicitor-client account was approved, the court adjourned decisions on the minor plaintiffs' specific contributions to the account and the detailed management of Brayden's structured settlement funds due to insufficient evidence regarding tax implications and the proposed structure.

The court also denied the plaintiffs' request to dispense with service of motion records on the defendant, emphasizing the need for proper procedural compliance and the defendant's right to review the full terms of the proposed order and release.

The defendants brought a motion to dismiss the plaintiff's action with prejudice due to the plaintiff's repeated failures to participate in litigation.

The plaintiff failed to attend examinations for discovery, did not file an affidavit of documents, and failed to comply with a court order requiring them to appoint new counsel or file a notice of intention to act in person.

The court found the plaintiff's conduct demonstrated an intention to abandon the action and granted the dismissal under Rules 3.04(4)(b)&(c) and 34.15(1)(b) of the Rules of Civil Procedure, with costs to be determined.

The defendants brought a motion to strike the statement of claim and dismiss the action due to the plaintiff's failure to advance the litigation, including failing to attend an examination for discovery.

The plaintiff's counsel also sought to be removed from the record due to an irreparable breakdown in the solicitor-client relationship, as the plaintiff had retrieved its file and ceased communication.

The court granted the motion to remove counsel and gave the plaintiff 60 days to appoint new counsel or file a notice of intention to act in person, failing which the defendants could renew their motion to strike the claim.

The plaintiff moved to strike the defendant's jury notice in a motor vehicle accident action due to trial delays caused by the COVID-19 pandemic.

The action had been set down for trial in August 2018 and was scheduled for a four-week jury trial in March 2021.

The court granted the motion, finding that the defendant's prima facie entitlement to a jury trial must yield to the overriding interests of justice, which include the timely resolution of civil disputes.

Given the suspension of civil jury trials in Ottawa and the capacity for in-court non-jury matters, justice would be better served by discharging the jury.

The applicant landlord sought to bring a subrogated claim against the respondent tenant for damages arising from a residential fire.

The respondent was also an officer of the applicant corporation.

The core issue was whether the respondent was an insured under the applicant's commercial general liability (CGL) policy, which contained a waiver of subrogation against any individual for whom insurance was provided.

The applicant argued the respondent was only insured in her capacity as an officer, while the respondent contended she was covered as an individual.

Applying principles of insurance contract interpretation, including the *contra proferentem* rule, and relying on precedent, the court found that the respondent was an insured for the purposes of the subrogation waiver, thereby prohibiting the subrogated action.

The plaintiffs brought a summary judgment motion seeking recovery of property damages arising from a motor vehicle collision in which the defendant driver lost control and struck them and their property.

The insurer sought to rely on the existing statement of claim or, alternatively, to amend it to add property damage claims after the two‑year limitation period had expired.

The court held that the statement of claim contained no material facts or relief relating to property damage as required by the Rules of Civil Procedure.

The proposed amendment would introduce a new cause of action that was statute‑barred under the Limitations Act, 2002, and the doctrine of promissory estoppel did not apply because no promise not to rely on the limitation period was established and there was no reliance.

The motion for summary judgment and amendment was dismissed.

The third-party insurer brought a motion for summary judgment to dismiss the plaintiffs' motor vehicle accident claim against the defendant, arguing it was statute-barred by the two-year limitation period.

The central issue was when the plaintiff discovered or should have discovered that his injuries met the threshold under section 267.5(5) of the Insurance Act.

The court dismissed the motion, finding that conflicting evidence regarding the plaintiff's medical prognosis and the untested affidavit evidence precluded a 'full appreciation' of the facts without a trial.

The defendant adjuster brought a motion to strike the claim against it on the basis that it had not been named in the notice of action but was added in the statement of claim.

The plaintiffs brought a cross-motion seeking to amend the notice of action to conform to the statement of claim.

The court held that the discrepancy constituted a procedural irregularity rather than a nullity under Rule 2.01(1) of the Rules of Civil Procedure and emphasized the liberal interpretation mandated by Rule 1.04(1).

In the absence of prejudice to the moving party and given that service occurred before the limitation period expired, the motion to strike was dismissed.

The court further found no need to formally amend the notice of action and awarded the plaintiffs substantial indemnity costs.

The applicant, an owner-operator, filed a complaint alleging the union breached sections 70 and 82(2) of the Labour Relations Act.

The applicant alleged the union acted arbitrarily by transferring him to a different pipeline loop and introducing a rotation system.

The Board dismissed this portion of the complaint, finding the union's actions were reasonable and in the best interests of the owner-operators.

However, the Board found the union violated section 82(2) by refusing to accept the applicant's union dues and renew his membership as a penalty for filing the complaint.

The Board ordered the union to compensate the applicant for lost earnings and restore his name to the dispatch list upon payment of dues.