Richard H. Shaban

This motion concerned an application by Tower-EBC G.P./S.E.N.C. (TEBC) to enforce two arbitral awards (a Partial Final Award on liability and damages, and a Final Award on costs) against Baffinland Iron Mines Corporation and Baffinland Iron Mines LP (BIM).

BIM raised several defenses, including a pending application to set aside or appeal the awards, which had previously been dismissed by the court.

The court granted TEBC's application to enforce both awards, confirming the awarded amounts for damages and costs, with a condition regarding the transfer of equipment title and excluding "applicable taxes" as not provided for in the original arbitral awards.

Pre-judgment interest was maintained as per the Tribunal's award.

The applicants, Baffinland Iron Mines LP and Baffinland Iron Mines Corporation (BIM), sought to set aside an arbitration award of over $70 million and a subsequent costs award in favour of the respondent, Tower-EBC G.P./S.E.N.C. (TEBC), pursuant to s. 46 of the Arbitration Act, 1991, and for leave to appeal under s. 45(1) of the Act.

The court dismissed BIM's application, finding no grounds to set aside the award for lack of jurisdiction or procedural unfairness, and further held that the arbitration agreement precluded an appeal from the Tribunal's decision.

The applicant appealed the Township's refusal to issue a building permit for an accessory building on his waterfront property.

The Township argued the proposed building violated front yard setback requirements, despite being located in the side yard, because the applicant's grandfathered cottage was closer to the water than current standards allow.

The Superior Court of Justice applied a correctness standard of review and found the Township erred in its interpretation of the zoning by-law.

The court held that the by-law expressly permits accessory buildings in the side yard and that front yard requirements do not apply to side yard constructions.

The appeal was allowed and the permit was ordered to be issued.

The appellants (CNR) insured a custom-built tunnel boring machine under an 'all risks' policy that excluded the cost of making good 'faulty or improper design'.

During construction, the machine failed due to excess differential deflection, allowing dirt to penetrate the main bearing and causing significant delay and repair costs.

The insurers denied coverage based on the design exclusion.

The Supreme Court of Canada held that the exclusion did not apply because the design was state-of-the-art and accommodated all foreseeable risks at the time it was finalized.

The Court concluded that a design is not 'faulty or improper' simply because it fails to withstand all foreseeable risks, provided it meets the highest engineering standards of the day.

The insurers, having been successful on appeal, sought costs for both the appeal and the lengthy trial.

The Court of Appeal awarded the insurers their costs of the proceedings on a partial indemnity scale, fixed at $135,000.

The court also awarded the insurers their costs of the trial on a partial indemnity scale, fixed at $510,000, noting that the trial involved complex factual and legal issues and that the claimed fees were reduced to reflect an appropriate partial indemnity recovery rate of approximately 65%.

The plaintiffs (CN companies) retained a manufacturer to build a custom tunnel boring machine (TBM) for a railway tunnel project.

The TBM broke down due to excess differential deflection, causing significant project delays.

The plaintiffs sought coverage under a builders risk insurance policy issued by the defendants.

The insurers denied coverage based on exclusions for faulty or improper design and inherent vice.

The trial judge found in favour of the plaintiffs, holding that the excess differential deflection was not foreseeable and thus the faulty design exclusion did not apply.

On appeal, the Court of Appeal allowed the appeal, finding that the trial judge erred in his foreseeability analysis.

The Court held that the risk of differential deflection was known and investigated by the designer, making it a foreseeable risk that the design failed to accommodate.

Consequently, the faulty or improper design exclusion applied, and the action against the insurers was dismissed.

The appellants, directors and officers of a bankrupt general contractor, appealed the dismissal of their motion to amend their statement of defence and compel further document production in a subrogated breach of trust action brought by the respondent sureties.

The Court of Appeal held that improvident underwriting was not a tenable defence to a subrogated action for breach of trust under the Construction Lien Act.

The Court also held that the limitation period in s. 45(1)(h) of the Limitations Act applies only to penal actions, whereas s. 13 of the Construction Lien Act is remedial, making the limitation defence untenable.

However, the Court allowed the appeal in part, granting leave to amend the statement of defence to plead the doctrine of laches.

The appellants appealed an order of the Superior Court of Justice regarding their right to recovery under a bond.

The Court of Appeal held that naming the appellants on the bond did not give them an independent right to recovery under their lending agreements.

The court declined to interfere with the motion judge's interpretation of the inter-lender agreement and dismissed the appeals with costs.