DATE: 20030723

DOCKET: C34290-C34282

COURT OF APPEAL FOR ONTARIO

DOHERTY, CHARRON and FELDMAN JJ.A.

B E T W E E N:

BERNARD ALIE and OTHERS

Glenn A. Smith and Eleni Maroudas

for Lafarge Canada Inc. and Cigna Ins. Co.

Plaintiffs

John S. McNeil, Q.C. for Boreal Ins. Co.

• and -

Don H. Rogers, Q.C. and Allyn Abbott for Kansa General Int’l. Ins. Co.

Geoffrey D. E. Adair, Q.C. for Scottish

BERTRAND & FRERE CONSTRUCTION COMPANY LIMITED, LARFARGE CANADA INC. and OTHERS

Defendants/Lafarge

Canada Inc.-Appellant

• and -

BOREAL INSURANCE INC., KANSA GENERAL INTERNATIONAL INSURANCE COMPANY LTD., SCOTTISH & YORK INSURANCE CO. LIMITED, CHUBB INSURANCE COMPANY OF CANADA, AMERICAN HOME INSURANCE COMPANY, GUARDIAN INSURANCE COMPANY OF CANADA, CIGNA INSURANCE COMPANY OF CANADA, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, P.A., FIRST STATE INSURANCE COMPANY, WESTCHESTER FIRE INSURANCE COMPANY, RELIANCE INSURANCE COMPANY, HARTFORD CASUALTY INSURANCE COMPANY, HARBOR INSURANCE COMPANY, PACIFIC EMPLOYERS INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, ROYAL INDEMNITY COMPANY and CALIFORNIA UNION INSURANCE COMPANY

Third or Subsequent

Parties (Respondents)

& York Ins., American Home Ins. and Guardian Ins. Cos.

Jamieson Halfnight for Chubb Ins. Co.

Robert J. Clayton for National Union Fire Ins.

Richard D. McLean and

D.G. Martin, Q.C. for First State Ins. Co. and Hartford Ins. Co.

Ruth Henneberry for Westchester Fire Ins. Co.

Crawford MacIntyre, Q.C. for Reliance Ins. Co.

Graeme Mew for Royal Indemnity

Crystal O’Donnell for Pacific Employers Ins. Co. and California Union Ins. Co.

Marina Stefanovic for Harbor Ins. Co.

P. Donald Rasmussen for Bertrand & Frere Construction Co. Ltd.

Garth MacDonald for Chubb Ins. Co. of Canada

Vernol I. Rogers and Thomas J. Donnelly for Guardian Ins. Co.

Wayne B. Spooner and

Melanie L. Griffin for Canadian General Ins. Co.

Brian Elkin for General Accident Assurance Co.

Keith N. Batten and

Donald L. Macdonald, Q.C. for Royal Insurance Co.

Heard: June 24, 25, 26 and 27, 2002

On appeal from the judgment of Mr. Justice Albert Roy dated April 17, 2000 and supplementary judgment dated December 15, 2000.

DOHERTY J.A.:

[1] We are satisfied that this is not an appropriate case in which to make the “Bullock” order sought by Lafarge. Based on the facts as found at trial and an appreciation of the very limited review of those facts available on appeal, it should have been apparent to Lafarge that the inclusion of the successful insurers as respondents on the appeal was not necessary. Lafarge’s decision to abandon the appeal against most of the successful insurers at the end of the oral argument supports this assessment.

[2] As indicated in Mr. Smith’s letter of May 9, there are two remaining issues:

• Should the successful insurers receive costs on a partial or substantial indemnity basis?

• Should the costs of certain parties (Boreal, successful insurers, Lafarge) be fixed or assessed?

[3] Counsel should file their submissions by Labour Day 2003. The court would appreciate it if Mr. Smith would continue to collect the submissions and file them as a group. Material that may be relevant to the actual fixing of costs (dockets, etc.) should not be filed unless and until the court decides to fix costs.

[4] If counsel require further clarification, they may arrange a conference call.

RELEASED: “JUL 23 2003”

“DD”

“Doherty J.A.”

“(for the panel)”