Patrick J. Monaghan

Multiple insurers disputed their duty to defend an insured chemical delivery company arising from two actions following a chlorine gas release at a public pool.

The insured and one insurer sought declarations compelling other insurers to contribute to defence costs.

Applying the pleadings rule from Monenco and related appellate authorities, the court held that the possibility of coverage under the policies triggered the duty to defend and that extrinsic evidence could not be used to prematurely determine factual causation issues.

The court also rejected an argument that defence cost coverage depended on insurer consent.

Principles of equitable contribution required all insurers with potential coverage to share defence costs.

The applicant insurer brought an application under Rules 14 and 21 for a pre-trial declaration regarding priority of insurance coverage between itself and the respondent insurer for an unidentified motorist claim.

The underlying action involved an employee struck by an unidentified vehicle while inspecting his employer's truck.

The court dismissed the application, finding that material facts regarding whether the claimant was a pedestrian or operator, as well as issues of estoppel and laches due to the applicant's six-year delay in raising the priority issue, required a full evidentiary record to be determined at the upcoming trial.

The plaintiff was injured in a charity bicycle ride when the defendant swerved and clipped his wheel.

The defendant pleaded volenti and contributory negligence, and served a jury notice.

At trial, the judge struck the jury notice, finding that the jury would be confused by the waiver signed by the participants and the volenti defence.

The trial judge found the defendant entirely liable.

The defendant appealed.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred in principle by striking the jury notice.

The volenti defence is not a claim for declaratory relief, and a properly instructed jury could understand the limited legal effect of the waiver.

The plaintiff and defendant were participating in a charity bicycle ride on a closed highway.

The plaintiff alleged that the defendant suddenly swerved into his path, causing a collision and injuries.

The court found that the defendant owed a duty of care to the plaintiff and that the appropriate standard of care was negligence, not recklessness.

The court concluded that the defendant breached this standard by making a sudden, unpredictable movement contrary to the rules of group cycling.

The court also held that the waiver signed by the plaintiff did not release other participants from liability for negligence.

Liability was found against the defendant.

The plaintiffs brought a motion to strike the defendant’s jury notice in a negligence action arising from a bicycle collision during a charity ride.

The defendant amended the statement of defence to plead the doctrine of volenti non fit injuria and reliance on a signed waiver releasing liability.

The court held that the waiver and the volenti defence would necessarily require evidence and argument concerning the interpretation and legal effect of the waiver, raising issues of law intertwined with the liability determination.

The court concluded that a jury could be confused by the waiver and might improperly interpret it as barring the lawsuit altogether.

Justice was better served by striking the jury notice and proceeding with a judge-alone trial.

The appellants appealed a trial judgment regarding the interpretation of a notice requirement for waiving a due diligence condition in an agreement.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation.

This endorsement amends the previously released oral reasons to include an inadvertently omitted sentence regarding the dismissal, the termination of any stay, and the costs award.

The appellants appealed a declaration that an agreement of purchase and sale became null and void due to their failure to properly deliver a notice of waiver of a due diligence condition.

The appellants argued that delivering the notice to the respondents' home and to a real estate representative satisfied the general notice provision in the agreement.

The Court of Appeal dismissed the appeal, finding that the specific language of Schedule A required the waiver notice to be brought to the personal attention of the sellers, which did not occur in a timely fashion.

The appellant was severely injured when she lost control of her vehicle after hitting the respondent's dog on a country road.

At trial, a jury found the respondent 35% responsible and the appellant 65% contributorily negligent, assessing damages accordingly.

The appellant appealed the jury's findings on contributory negligence, apportionment of liability, and damages, arguing that the jury relied on unreliable evidence from child witnesses and was misdirected on mitigation.

The Court of Appeal dismissed the appeal, finding that the trial judge properly instructed the jury and that the jury's verdict was not so plainly unreasonable and unjust as to warrant appellate interference.

The appellant insurer sought contribution from the respondent insurer for a $2.75 million settlement paid to a student injured at a university judo club.

Coverage under the respondent's policy depended on whether the club was a 'member club' of the provincial judo association at the time of the accident.

Although the club had not paid its annual fees, the Court of Appeal found that under the association's by-laws, membership continues until formal suspension or expulsion.

Since no such action was taken, the club remained a member, and the respondent's policy provided coverage.

The appeal was allowed.

The plaintiff was seriously injured when struck by a motor vehicle driven by an impaired driver who had been drinking at a university pub.

The jury found the driver 70% liable and the pub 30% liable, awarding general, aggravated, and punitive damages, but dismissing the family members' claims.

On appeal, the Court of Appeal upheld the liability apportionment and general damages, but struck the separate aggravated damages award.

The Court affirmed that punitive damages are available in negligence actions for impaired driving but reduced the quantum from $100,000 to $20,000.

The Court also allowed the family members' appeal, awarding them damages under the Family Law Act.

The plaintiff was seriously injured when struck by a motor vehicle driven by an impaired driver who had been drinking at a university pub.

The jury found the driver 70% liable and the pub 30% liable, awarding general, aggravated, and punitive damages, but dismissing the family members' claims.

On appeal, the Court of Appeal upheld the liability apportionment and general damages, but struck the separate aggravated damages award.

The Court affirmed that punitive damages are available in negligence actions for impaired driving but reduced the quantum from $100,000 to $20,000.

The Court also allowed the family members' appeal, awarding them damages under the Family Law Act.

The applicants obtained a judgment against a moving company after their belongings were stolen from a trailer parked on the street.

When the judgment went unsatisfied, they brought an application under s. 132 of the Insurance Act against the moving company's insurers.

The application judge found that the loss fell under the $1 million warehouse insurance limit rather than the $500,000 transportation insurance limit.

The Court of Appeal allowed the primary insurer's appeal in part, holding that the breach was a failure to deliver under the transportation contract, so the $500,000 transportation limit applied.

However, the Court upheld the application judge's finding that the insurer was liable for post-judgment interest and costs exceeding the policy limit.

The appellant owned a motorboat that his brother borrowed to take passengers across a lake at night.

The brother made a navigational error and crashed into an island, resulting in one death and serious injuries.

The trial judge found the brother liable as the operator and also found the appellant liable as the owner under the Canada Shipping Act.

On appeal, the Court of Appeal held that the trial judge erred in interpreting the Act as imposing statutory liability on an owner for the fault of the vessel in these circumstances.

The appeal was allowed and a new trial was ordered on the issue of the owner's liability under ordinary tort principles.

The plaintiffs contracted with the defendant moving company to move and store their household goods.

The defendant assured the plaintiffs that their goods would be secure in a locked trailer on the defendant's lot.

However, the trailer was left unattended on a public street overnight and was stolen.

The defendant admitted liability but sought to rely on a limitation of liability clause limiting damages to $0.60 per pound.

The trial judge found the clause unenforceable.

The Court of Appeal upheld this decision, finding that enforcing the limitation clause would be unconscionable given the false assurances of security.

The appeal was allowed only to set aside damages awarded to the plaintiffs' corporations.

The respondents sought substantial indemnity costs of over $66,000 for an appeal, relying on an offer to settle.

The Court of Appeal held that Rule 49 does not apply to appeals and that substantial indemnity costs are reserved for exceptional circumstances, which were not present.

The appellant argued the old costs regime should apply as the appeal was argued before the new costs grid took effect.

Following recent jurisprudence, the Court confirmed the new costs grid is procedural and applies retroactively to costs awarded after its implementation.

The respondents were awarded partial indemnity costs of $22,000 in fees plus disbursements.

A university student was severely injured during a freshman orientation mud slide event.

The student sued the university and the student residence president, among others.

The appellant, who insured the university and its agents, settled the lawsuit and sought equitable contribution from the respondent, who provided a homeowners' policy to the residence president's parents.

The Court of Appeal dismissed the appeal, finding that while the residence president was covered under his parents' policy, the claim was excluded by the policy's business exclusion clause because he received an honorarium for his duties.

As there was no concurrence of coverage, the appellant was not entitled to equitable contribution.

The appellant appealed a trial judgment finding it liable for damage to the respondent's bus caused by a fire originating from a seat heater.

The Court of Appeal found that while the trial judge erred in stating there was a presumption of negligent manufacture, the evidence supported the conclusion that the heating pads were inappropriate components for the heavy use of the bus seat.

The appellant breached its duty to take reasonable care in manufacturing the product.

The appeal was dismissed with costs.