Pamela Pengelley

The moving party sought leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal in writing and awarded all-inclusive costs of $5,000 to the responding party, His Majesty the King in Right of Ontario.

The defendant, Her Majesty the Queen in right of Ontario (HMQ), brought a motion to strike the plaintiffs' statements of claim in two actions arising from a fire that destroyed a school.

The plaintiffs alleged that the Office of the Fire Marshal (OFM) was negligent in failing to ensure a proper fire watch was in place after the initial fire was extinguished, leading to a rekindling that caused extensive damage.

The court found that the Fire Protection and Prevention Act, 1997 does not impose a duty on the OFM to post a fire watch or suppress fires, as those duties belong to municipal fire departments.

The court struck the negligence and nuisance claims against HMQ but granted the plaintiffs leave to amend their pleadings to properly allege a duty of care based on specific interactions or assumption of control, provided the alleged duty does not exceed the OFM's statutory powers.

The plaintiff sought costs following the dismissal of the defendant's motion to transfer the proceeding.

The court found that the transfer motion was unnecessary, inappropriate, and brought for improper purposes such as judge-shopping and causing delay.

The defendant also inappropriately communicated with the court, breaching Rule 1.09.

Consequently, the court awarded costs to the plaintiff on a substantial indemnity basis, fixed at $7,100.

The plaintiff school board commenced an application in Brampton to appoint an arbitrator for a business dispute arising from a fire.

The defendant objected to the arbitration and brought a motion to transfer the venue of the application to Toronto, arguing the dispute had no connection to Brampton.

The court dismissed the motion, finding that the question of who arbitrates has no natural connection to any venue and that transferring the matter would cause unnecessary delay and waste judicial resources.

The appellant sought damages of approximately $1 million for losses sustained when a drainage pipe running underneath a floor installed by the respondent caused a flood in its warehouse.

The trial judge dismissed the negligence claim, finding that although the respondent damaged the drainage pipe by puncturing it with a stake used to brace concrete forms, the respondent nevertheless met the standard of care.

The appellant appealed, arguing the trial judge failed to consider contractual duties, erred in foreseeability analysis, and erred in not determining whether industry practice was itself negligent.

The Court of Appeal upheld the trial judge's decision, finding no error in the application of the standard of care, foreseeability analysis, or treatment of industry practice.

The defendant, having successfully defended an eight-day trial, sought enhanced costs, including full indemnity for trial attendance and costs submissions, citing offers to settle.

The plaintiff opposed, arguing for denial of costs due to the defendant's alleged litigation misconduct, including late document production and expert reports.

The court found that while the defendant's offers to settle were substantial, the circumstances were not exceptional enough to warrant a departure from the normal practice of awarding partial indemnity costs.

The court also found no clear evidence that one party's pre-trial conduct was significantly more egregious than the other's to justify a costs adjustment.

The court adjusted some disbursements claimed by the defendant.

Ultimately, the defendant was awarded partial indemnity costs totaling $219,500.

The plaintiff, Mabe Canada Inc., sued the defendant, United Floor Ltd., in negligence for approximately $1 million in damages caused by a flood in its warehouse.

The flood resulted from a damaged drainage pipe located beneath the concrete floor, which the plaintiff alleged was punctured by the defendant's stakes during floor installation in 2004.

The court found that the pipe was indeed damaged by the defendant's stakes.

However, the court concluded that the defendant met the applicable standard of care, as the general contractor (First Gulf) failed to adequately inform United Floor of the shallow and unusual location of the pipes, and industry practice did not require the defendant to proactively locate such unexpectedly shallow pipes.

Consequently, the plaintiff failed to prove negligence, and no damages were awarded.

The applicant sought an order appointing a mediator/arbitrator under a construction contract dispute clause arising from a fire that occurred more than a decade after project completion.

The respondent argued that the dispute was properly before the courts, particularly as the applicant had commenced a multi-party action against numerous defendants not bound by the arbitration clause.

The court held that the arbitration provisions were intended to operate during the course of the construction project and that ordering arbitration would create parallel proceedings and potential prejudice to other parties.

Relying on prior authority addressing similar procedural conflicts, the court found that the applicant could not pursue arbitration against one party while simultaneously litigating broader claims in court.

The application was dismissed.