Pasquale Santini

The plaintiffs were successful in a Rule 26 motion to amend their pleadings and sought costs.

The defendants argued the costs should be reduced due to efforts expended on an anticipated summary judgment motion based on the prior pleadings, which they claimed were costs thrown away.

The court declined to discount the costs on this basis, noting the summary judgment motion might not have succeeded and some preparation might still be useful.

The court fixed the plaintiffs' costs at $14,212.82 on a partial recovery basis.

The plaintiffs brought a motion under Rule 26 of the Rules of Civil Procedure for leave to deliver a fresh statement of claim in a negligence action against a fitness club and associated entities.

The proposed amendments sought to add a claim for negligent misrepresentation regarding insurance coverage and to pierce the corporate veil, based on information obtained during discoveries.

The defendants opposed the motion, arguing the amendments pleaded evidence, withdrew admissions, raised untenable claims, were statute-barred, and constituted an abuse of process.

The court rejected the defendants' arguments, finding the amendments pleaded material facts, did not cause irreparable disadvantage, and raised triable issues discovered within the limitation period.

The motion was granted.

The defendants brought a summary judgment motion seeking to bar the plaintiffs' action for a fatal motor vehicle accident under section 267.6 of the Insurance Act, arguing the deceased driver was uninsured.

The plaintiffs alleged negligence against the Ministry of Transportation and its contractor for highway design and non-repair.

The court, applying the modern principle of statutory interpretation and guided by Hernandez v. 1206625 Ontario Inc., determined that section 267.6 does not apply to bar claims against tortfeasors whose liability arises from negligent highway design or non-repair, as such liability does not arise directly or indirectly from the use or operation of an automobile.

Summary judgment was granted in favour of the plaintiffs, allowing the action to proceed.

The applicants appealed a Master's order dismissing their action.

The Superior Court of Justice found that the appeal was brought in the wrong court, as appeals from a case management master's final order lie to the Divisional Court.

The court also determined that Rule 2.1 of the Rules of Civil Procedure, which allows for dismissal of vexatious or frivolous proceedings, does not apply to appeals.

The appeal was effectively dismissed due to procedural impropriety.

The court addressed costs relating to a motion for leave in a construction litigation matter involving a contractor, architect, and other construction parties.

On consent of the parties, the court fixed the costs of the motion for leave.

The plaintiff was ordered to pay $6,000 plus HST to one defendant and $6,000 plus HST to the remaining defendants.

The costs were ordered payable in the cause of the appeal.

The plaintiff mortgagee brought a motion for summary judgment against the defendant insurer to recover the shortfall on a mortgage following a fire at the insured property and a subsequent power of sale.

The insurer denied the claim, arguing the mortgagee was only entitled to the actual cash value of repairs and had failed to file a timely proof of loss.

The court granted summary judgment, holding that the standard mortgage clause created a separate contract between the mortgagee and insurer, entitling the mortgagee to recover its shortfall regardless of the mortgagor's actions or the lack of repairs.

The plaintiff was injured when an employee of the defendant nightclub negligently discharged a firearm.

The plaintiff sued the nightclub for vicarious liability and breach of the Occupier's Liability Act.

The nightclub's insurer refused to defend the action, relying on a policy exclusion for bodily injury arising out of the ownership or use of a gun.

The nightclub brought a motion to compel the insurer to defend the action.

The court granted the motion, finding that the claims in negligence and under the Occupier's Liability Act were not entirely derivative of the excluded conduct, and that the exclusion clause was ambiguous as to whether it applied to all insureds or only the one who committed the excluded act.

The defendants brought motions for summary judgment seeking dismissal of the plaintiff’s construction negligence action on the basis that it was statute-barred under the two-year limitation period in the Limitations Act, 2002.

The plaintiff alleged water infiltration problems in a condominium project caused by deficiencies in an exterior acrylic stucco system supplied and installed by the defendants and designed by the architect.

The defendants argued the plaintiff knew of the loss and potential responsible parties in 2005–2006 and therefore the limitation period expired before the action was commenced in June 2008.

The court held that the discoverability issue was highly contextual and that the plaintiff’s ongoing investigation into the source of the leaks raised a genuine issue requiring trial.

Summary judgment was therefore inappropriate and the limitation issue must be determined at trial.

A fatal motor vehicle collision occurred after a driver borrowed the vehicle owner’s car earlier in the day and later drove it while intoxicated, causing the death of a young driver.

The plaintiffs and the vehicle owner’s insurer disputed whether the owner or the insurer was responsible for paying an agreed amount of damages.

The court considered whether the driver had possession of the vehicle with the owner’s consent under s.192(2) of the Highway Traffic Act.

Applying appellate authority emphasizing that consent to possession—not consent to operation—governs vicarious liability, the court found the driver remained in possession of the vehicle with the owner’s consent throughout the day.

The owner was therefore vicariously liable for the driver’s negligence and the claim against the insurer was dismissed.

The applicant sought a declaration that her homeowner’s insurer owed a duty to defend counterclaims alleging negligent supervision of a child that resulted in injury to her son.

The counterclaims arose after the family sued third parties for injuries sustained by the child, and those defendants sought contribution and indemnity against the applicant.

The insurer denied coverage relying on a policy exclusion for bodily injury to the insured or any person residing in the insured’s household.

The court held that the exclusion, read together with the policy’s liability coverage provisions, clearly removed coverage for claims relating to bodily injury suffered by a household member.

Because the injured child fell within the policy definition of “you”, the insurer had no duty to defend the counterclaims.

The plaintiffs were successful on a motion to dismiss the claim against one of the defendants, after consenting to the dismissal of one plaintiff's claim without costs.

The plaintiffs sought costs of $8,561.40 on a partial indemnity basis.

The defendants argued for costs of $1,860.00 in the cause, noting that one of the two issues was resolved prior to the hearing.

The court considered the factors under Rule 57.01(1) and fixed costs payable to the plaintiffs at $3,300 inclusive of fees, HST, and disbursements, apportioning some preparation time to the resolved issue.

The defendants brought a motion under Rule 21 of the Rules of Civil Procedure to strike the claim against an individual insurance broker employee on the basis that it disclosed no reasonable cause of action and was frivolous, vexatious, or an abuse of process.

The plaintiff alleged a longstanding relationship with the broker spanning 11 years, with annual consultations and reliance on the broker as its agent in obtaining and renewing insurance coverage.

The moving parties argued that the broker owed no individual duty of care because he acted within the scope of his employment and any liability would be vicarious.

The court held that Canadian negligence law does not impose a blanket rule preventing employees from owing duties of care to customers of their employer and that such questions depend on the specific factual circumstances.

Given the pleaded longstanding advisory relationship, the claim against the broker had a reasonable prospect of success and could not be struck at the pleadings stage.

The Court considered whether defendants could seek dismissal under Ontario Rule 21.01(3)(a) based on arbitration and forum selection clauses after delivering a statement of defence.

It held that a defence pleading the foreign forum clause does not itself bar a subsequent Rule 21 motion, provided the motion is brought promptly.

Applying the strong-cause framework for displacing contractual forum clauses, the Court found no basis to refuse enforcement.

The appeal was dismissed with costs.