Paul Joseph Green

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.