Osborne A.C.J.O.

The appellant insurer appealed a declaration that it had a duty to defend the respondent insured, a contractor, in actions arising from an oil spill.

The insured was retained to remediate the spill but was sued for allegedly failing to clean it up in a timely and proper manner.

The insurer argued that the claims did not fall within the insuring agreement and were excluded by a pollution exclusion clause.

The Court of Appeal dismissed the appeal, holding that the claims fell within the insuring agreement and that the pollution exclusion clause did not apply because the insured's alleged negligence constituted an independent cause of the loss occurring after the original discharge.

The cross-appellant appealed a trial judgment awarding damages for breach of contract regarding the sale of a tavern.

The cross-appellant argued that the respondent acted as a self-appointed agent, breached a fiduciary duty, and that the contract was unenforceable due to the maxim ex turpi causa non oritur actio.

The Court of Appeal dismissed the cross-appeal, finding that the respondent acted on his own behalf with authority, owed no fiduciary duty as there was no agreement to relinquish self-interest, and that the contract did not involve any illegal or immoral act defrauding a third party.

A supplementary endorsement was issued to clarify the disposition of costs in the Divisional Court.

The court amended its previous reasons to provide the appellants with the option to have the costs assessed on a party and party basis within thirty days.

If the option is not exercised, the respondent is entitled to recover the $20,000 in costs fixed by the Divisional Court.

The appellant mortgagee held two mortgages on golf course properties owned by the respondent.

After the mortgages matured and went into default, the appellant appointed a receiver and eventually took possession of the properties, later selling them at auction.

The trial judge limited the appellant's recovery to the mortgage debt as of October 31, 1996, finding that the appellant had a duty to mitigate its losses and should have sold the properties earlier.

The Court of Appeal allowed the appeal, holding that the appellant was not in possession until August 1996 and that the principle of mitigation does not apply to an action for a fixed debt.

The Court affirmed that a mortgagee may exercise its power of sale whenever it chooses, provided it acts in good faith and takes reasonable precautions to obtain true market value.

The appellants appealed a trial judgment that found they had overvalued inventory in a share purchase agreement and ordered them to repay the purchase price.

The Court of Appeal agreed that the inventory was overvalued but found the trial judge erred in calculating damages by failing to deduct a tax benefit and settlement proceeds received by the purchaser.

The Court reduced the purchaser's damages to $186,781.

The Court also allowed the appellants' counterclaim for $300,000 on an earn-out promissory note, setting off the purchaser's damages against this amount.

As a result, the personal action against the appellant guarantor was dismissed.

The appellants appealed an order prohibiting picketing at or adjacent to the respondent's business premises, arguing the order was ambiguous as to the location of the proscribed picketing.

The Court of Appeal dismissed the appeal, finding the picketing took place at the respondent's business premises and the order's reference to location was clear.

The Court also declined to interfere with the penalties imposed.

The plaintiff sued his former solicitor for negligence after the solicitor failed to include a due on sale clause in a vendor take back mortgage.

The plaintiff's former spouse, who co-owned the mortgage, refused to join the action and was added as a defendant.

She counterclaimed against the plaintiff for occupation rent of their former matrimonial home.

The trial judge found the solicitor negligent and awarded damages to both the plaintiff and his former spouse, while also ordering the plaintiff to pay occupation rent and extinguishing judgment debts he had purchased against her.

On appeal, the Court of Appeal upheld the negligence finding but ruled the solicitor was only liable to the plaintiff for his half of the damages, as the former spouse had not sued him.

The Court also upheld the occupation rent award but reversed the extinguishment of the assigned judgment debts, allowing the plaintiff to enforce them.

The respondents sought leave under s. 246 of the Business Corporations Act to commence a derivative action.

The appellants, who were the intended defendants in the proposed action, moved to intervene in the leave application.

The motions judge dismissed the motion to intervene.

The Court of Appeal dismissed the appeal, holding that s. 246 permits the proceeding to be brought by application rather than motion, and that the motions judge did not err in exercising his discretion to deny intervention, as the intended defendants' rights would be fully protected once the action was commenced.

The appellant slipped and fell on an icy sidewalk and broke her leg.

She faxed a handwritten notice of her claim to the municipality within the seven-day statutory period, but the notice did not specify the exact date or location of the fall.

The municipality successfully moved for summary judgment on the basis that the notice was defective under s. 284(5) of the Municipal Act.

The Court of Appeal allowed the appeal, holding that a notice does not strictly need to state the time and place if it provides enough information for the municipality to investigate.

Whether the appellant's notice was sufficient raised a genuine issue for trial.

The appellant general contractor appealed the trial judge's assessment of damages for construction deficiencies and delays in building a commercial office building.

The trial judge awarded $1.7 million for diminution in value due to floor slab deficiencies and $770,000 for lost rental income from prospective tenants due to a five-month construction delay.

The Court of Appeal upheld the $1.7 million award, finding the owner did not fail to mitigate its damages.

However, the Court allowed the appeal regarding the delay damages for prospective tenants, finding the $770,000 assessment was not supported by the evidence, and reduced that portion of the award to $65,000.