Robert Harrison

This is a supplementary decision to the Court of Appeal's judgment allowing the appeal in part.

Following the release of the main decision, the respondent requested that funds paid into court by the appellants as security for costs be paid out to the respondent.

The appellants did not oppose this request.

The court ordered that the funds held by the Accountant of the Superior Court of Justice be paid out to the respondent.

On appeal from a trial judgment dismissing the appellants' action for breach of contract and repudiation.

The appellants, who operated methadone treatment clinics, hired the respondent physician under a contract requiring her to remit 45% of OHIP billings and containing a non-competition clause.

Following the dissolution of the appellants' joint venture with another clinic operator, the respondent continued working at the jointly-operated clinics.

The trial judge found the contract frustrated by intervening events and that the non-competition provision was not breached.

The appellants appealed, arguing errors in the frustration analysis and interpretation of the non-competition clause.

The Court of Appeal upheld the trial judge's findings on frustration and contractual interpretation but allowed the appeal in part, awarding the appellants $8,194.59 for underpayment during the period prior to the alleged repudiation.

This is a costs decision on appeal from a Superior Court judgment.

The appellant appealed the decision of Justice James F. Diamond dated August 22, 2016, and the associated costs order dated September 27, 2016.

The Court of Appeal reviewed the costs submissions of both parties and determined that the respondent was entitled to costs of the appeal on a partial indemnity basis, fixed at $80,000 inclusive of disbursements and HST.

The court found no basis for awarding costs on a substantial indemnity basis.

The appellant appealed a trial judgment dismissing his claim for declaratory relief related to an insurance policy and sought leave to appeal a substantial indemnity costs award of $1,250,000.

The trial judge found that the policy contained a common mistake in the paid-up values table and ordered rectification.

The appellant argued that rectification was unavailable as a remedy and that any rectification claim was statute-barred under the Limitations Act.

The Court of Appeal upheld the trial judgment, finding that rectification was an appropriate remedy for the common mistake and that the claim was not statute-barred because the injury, loss, or damage only occurred when the appellant sought to resile from the parties' common understanding.

The court also upheld the substantial indemnity costs award, finding the appellant's conduct worthy of judicial sanction.

The plaintiff initiated an action seeking a declaration that the paid-up values in his life insurance policy, which significantly exceeded the face value, were correct and reflected an agreed-upon inflation protection.

The defendant, Manulife, contended that the policy's non-forfeiture table contained a clerical error, mistakenly stating "per $1,000" instead of "per $5,000" of face amount, and sought rectification.

The court found that the plaintiff never requested inflation protection, and the error in the policy was mutual and obvious.

The plaintiff's action was dismissed, and the court ordered the policy to be rectified to reflect the true agreement, changing "per $1,000" to "per $5,000" in the non-forfeiture table.

The defendant brought a motion to preclude the plaintiff's expert witness, W. Steve Prince, from testifying regarding the commercial viability of an insurance policy.

The defendant argued Prince's opinion evidence was unnecessary and irrelevant, particularly concerning policy interpretation and profitability assumptions.

The court dismissed the motion, finding Prince's evidence potentially relevant to counter the defendant's assertion that such a policy was "absurd" in 1982, and also relevant if the legal remedy of rectification were required to assess the potential unconscionability of allowing the policy to remain in place.