Rebecca Huang

A case conference was held to establish a timetable for an upcoming motion for summary judgment.

The court endorsed the schedule agreed to by all counsel, setting deadlines for the delivery of materials, cross-examinations, and factums.

The applicants, an IT services company and its sole director, sought a declaration that their errors and omissions insurer had a duty to defend them against a copyright infringement action commenced in the U.S. The insurer denied coverage, citing material misrepresentations in the insurance application and various policy exclusions, relying heavily on extrinsic evidence.

The court ruled that the duty to defend is governed by the pleadings in the underlying action and the policy language, not by extrinsic evidence that would convert the motion into a "trial within a trial." Finding that the U.S. claims, on their face, fell within the policy's coverage for a "wrongful act" in connection with "professional business" and within the coverage period, and that the insurer failed to meet its onus to prove exclusions without the inadmissible extrinsic evidence, the application was allowed.

The appellant developer contracted with an electrical contractor to construct two solar energy projects.

The contractor named the appellant as an additional insured under its commercial general liability policy for liability arising out of the contractor's operations.

After fires caused by transformers selected by the appellant, the appellant settled claims with the project purchaser and sought coverage from the insurer.

The Court of Appeal upheld the trial judge's finding that the appellant's liability did not arise out of the contractor's operations, as the contractor merely installed the transformers chosen by the appellant.

The appeal was dismissed.

The respondent, having successfully defended an appeal, sought costs of $17,818.44.

The appellant did not dispute the entitlement to costs but argued the quantum was excessive, noting he would have sought only $9,152.95 had he been successful.

The Court of Appeal agreed the requested amount was high given there was no oral hearing, and fixed the costs payable to the respondent at $9,000 inclusive of disbursements and HST.

The appellant, an independent agent for the respondent financial services company, appealed the dismissal of his application for an order requiring the respondent to pay service commissions.

The respondent had changed its policy to make service commissions dependent on new sales performance.

The Court of Appeal found no palpable and overriding error in the application judge's conclusion that the contract permitted the respondent to modify pay arrangements and impose minimum performance standards upon notice.

The appeal was dismissed.

The defendants brought motions to strike the plaintiff's Amended Amended Statement of Claim in its entirety.

The plaintiff alleged a fraudulent scheme involving breach of contract, conspiracy, and other torts by its former employee and various corporate and individual defendants in China and Ontario.

The court found that the plaintiff failed to plead material facts to support personal liability against the individual defendants (except the former employee) separate from their roles as corporate directors or officers.

The court struck the entire statement of claim but granted the plaintiff leave to deliver a Fresh as Amended Statement of Claim in accordance with the court's directives.

Following the dismissal of the plaintiff's action for insurance coverage, bad faith, and professional negligence, the successful defendants sought costs.

Economical sought substantial indemnity costs based on unaccepted offers to settle.

The court rejected this, finding no egregious misconduct by the plaintiff, and awarded costs on a partial indemnity scale.

The court fixed the partial indemnity hourly rates at 60% of actual rates and assessed the reasonableness of the time and disbursements claimed, including expert witness fees.

The court awarded $356,452.49 in costs to Economical and $183,979.82 to FCA, emphasizing the objective of fixing an amount that is fair and reasonable for the unsuccessful party to pay.

The appellant purchased a pre-construction condominium detached house unit under an Agreement of Purchase and Sale.

On the closing date, the appellant's solicitor advised that certain common elements (a parkette and entrance/exit gates) had not been constructed, contrary to the disclosure statement, and reserved the right to rescind.

The respondent terminated the agreement and forfeited the deposit.

The appellant subsequently rescinded and sought return of the deposit.

The application judge found the appellant breached the agreement and dismissed the application for return of the deposit.

The Court of Appeal upheld this decision, finding no material change in circumstances under the Condominium Act and that time was not of the essence for construction of the common elements.

The applicant, an independent financial advisor, brought an application to recover service commissions withheld by the respondent company.

The respondent had implemented a new policy making the payment of service commissions dependent on new sales performance.

The court interpreted the Financial Security Advisor Contract between the parties and found that, although service commissions were not explicitly listed in the compensation schedule, they were contemplated by the contract.

The court held that the clear and unambiguous wording of the contract allowed the respondent to modify or withdraw any established pay arrangement, including service commissions, for failure to meet minimum performance standards.

The application was dismissed.

The applicant, a minority shareholder, brought a motion to strike certain paragraphs from the respondent's affidavit in an oppression application.

The court struck paragraphs containing legal argument and conclusions, finding them inappropriate for an affidavit.

However, the court deferred the decision on paragraphs challenged for relevance and character impugnment to the judge hearing the main application, emphasizing that relevance is best assessed in the full context of the application.

Sky Solar, a solar energy project developer, sued its contractor's insurer (Economical) and insurance broker (FCA) after two fires involving transformers at its solar projects.

Sky Solar was an additional insured under the contractor's commercial general liability (CGL) policy.

After the second fire, Sky Solar settled with the project buyer (Firelight) for remediation costs and lost income, then sought indemnity from Economical.

Economical denied coverage, arguing Sky Solar's liability did not arise from the contractor's operations and that Sky Solar breached a policy condition by settling without consent.

Sky Solar also claimed negligence and bad faith against FCA for issuing certificates of insurance.

The court dismissed Sky Solar's action against both Economical and FCA, finding no coverage under the policy and no breach of duty by the broker.

The defendants, a builder (Park Avenue) and a developer (739), moved for summary judgment to dismiss the plaintiffs' action for declarations, specific performance, and damages related to the termination of pre-construction home agreements.

The plaintiffs, five buyers, alleged breach of good faith, honest performance, and negligence.

The court found that Park Avenue made reasonable efforts and acted in good faith to satisfy an early termination condition (obtaining a Cost Sharing Agreement, CSA) despite delays caused by a third-party developer.

The court also determined that 739, the developer, did not owe a duty of care to the purchasers due to a lack of proximity.

Even if a breach of contract by Park Avenue had occurred, the court concluded that the agreements would have been lawfully terminated anyway, resulting in no damages.

Summary judgment was granted in favour of the defendants, dismissing the plaintiffs' action.

This case involved two applications arising from a failed condominium purchase and sale.

The purchaser sought a refund of her deposit, arguing she validly rescinded the agreement due to the vendor's failure to complete common elements (parkette and gates), which she claimed constituted a material change.

The vendor contended the purchaser breached the agreement by failing to close, leading to termination, and that rescission was not possible after termination.

The court found that the purchaser had no right to refuse closing based on uncompleted common elements, as the agreement explicitly stated this would not deem the unit incomplete.

Furthermore, a change in the construction schedule for amenities was not a "material change" under the Condominium Act, 1998.

The court affirmed the common law principle that an agreement cannot be rescinded once it has been validly terminated.

Consequently, the purchaser's application for a deposit refund was dismissed, and the vendor's application was allowed, confirming the purchaser's breach, the vendor's right to terminate and retain the deposit, and the right to sue for further damages.

A trial of an issue was ordered to determine the quantum of damages exceeding the forfeited deposit.

The applicant purchaser sought a refund of her deposit after failing to close a condominium purchase, arguing she validly rescinded the agreement due to the vendor's failure to complete common elements (parkette and gates) and a material change in the disclosure statement.

The respondent vendor counter-applied for a declaration of breach, forfeiture of deposit, and further damages.

The court dismissed the purchaser's application, finding that the failure to complete common elements was not a fundamental breach or a material change under the Condominium Act, and that a right to rescind cannot be exercised after the agreement has been validly terminated by the vendor.

The vendor's application was allowed regarding the breach and deposit forfeiture, but the claim for damages beyond the deposit was ordered to proceed to trial due to disputed material facts regarding mitigation.

This endorsement addresses eight related motions in five consolidated actions stemming from uncompleted real estate transactions.

The court case-managed the proceedings, resolving most motions by agreement or direction.

The primary substantive dispute adjudicated concerned the quantum of security for costs to be paid by the plaintiffs, Gui Zhao and Juanli Liu, to the defendant Qing Hui, which the court set at $27,000, a figure between the parties' proposals.

Other motions, including those for discovery and to strike a cross-claim, were adjourned sine die with directions for future resolution or agreement.

The plaintiffs, Chinese companies, sued the defendants in Ontario for alleged fraud, claiming the defendants stripped assets from two non-party Chinese companies, making them unable to satisfy Chinese default judgments.

Three motions were heard together: the defendants' motion to set aside an ex parte Certificate of Pending Litigation (CPL), and the plaintiffs' motions for a new CPL on another property and a Mareva injunction.

The court dismissed the plaintiffs' motions for a Mareva injunction and a new CPL, finding they failed to meet the strict requirements, including providing a proper undertaking for damages, establishing a strong prima facie case of fraud, or demonstrating a real risk of asset removal or irreparable harm.

The court granted the defendants' motion to set aside the existing ex parte CPL due to the plaintiffs' material non-disclosure on the original ex parte motion, including the dismissal of fraud complaints by Chinese police and the absence of fraud allegations in the Chinese litigation.

Costs were awarded to the defendants on a partial indemnity basis.

The defendants brought a motion for an order requiring the plaintiffs to post security for costs.

The plaintiffs conceded the appropriateness of security for costs, leaving the quantum and timing as the main issues.

The court, after reviewing the defendants' bill of costs and considering the uncertainty regarding trial length and witness numbers, ordered the plaintiffs to post security for costs in tranches for discovery, mediation, and pre-trial stages, with the possibility of seeking further security for trial costs later.

The court adjusted the hourly rate for counsel and estimated hours for various stages.

The moving party sought a stay of proceedings pursuant to rule 63.02 of the Rules of Civil Procedure pending a motion for reconsideration of the Court of Appeal's dismissal of her motion for leave to appeal.

The underlying dispute involved a Small Claims Court judgment awarding damages to the respondent for flooding allegedly caused by the moving party's disconnected downspout.

The moving party appealed to the Divisional Court, which dismissed her appeal.

She then sought leave to appeal to the Court of Appeal, which was dismissed with costs.

The moving party subsequently sought a stay of enforcement of the judgment, claiming fresh evidence had been discovered.

The Court of Appeal dismissed the motion for a stay, finding that the moving party had not met the test for a stay and was attempting to re-litigate factual issues already decided at trial.

The plaintiff, Sky Solar (Canada) Ltd., brought a motion for costs on a substantial indemnity basis after the defendant broker, Firstbrook, Cassie & Anderson Limited (FCA), abandoned its motion for summary judgment.

The court found that Sky Solar was prima facie entitled to costs under Rule 37.09(3) and that FCA failed to displace this entitlement.

Furthermore, the court determined that FCA acted unreasonably in bringing the summary judgment motion, particularly by ignoring judicial caution regarding expert evidence and proceeding without sufficient evidence, thus warranting substantial indemnity costs under Rule 20.06.

The defendants brought a motion for an order compelling the plaintiff to produce certain documents, specifically correspondence with its property and liability insurer and insurance broker, and all relevant insurance policies.

The plaintiff did not oppose the production of insurance policies but resisted the production of correspondence, arguing irrelevance.

The court granted the production of the insurance policies but dismissed the request for correspondence, finding that the defendants' pleadings did not establish the relevance of such documents to the issues in the action or the pending summary judgment motion, characterizing the request as a "fishing expedition."