Robert James Clayton

The applicants brought a motion to oppose the confirmation of a Master's report regarding the amount owing under a boiler and machinery insurance policy issued by the respondent.

The applicants argued the Master erred in law by distinguishing between the valuation clauses in their property policies and the respondent's policy, and by accepting the respondent's valuation evidence which allegedly factored in depreciation improperly.

The Superior Court of Justice dismissed the motion, finding no error in the Master's conclusion that the respondent's policy required replacement with property of 'like kind, capacity, size and quality', which differed from the 'new for old' replacement cost coverage in the applicants' policies.

This case involved a reference to determine the valuation of an insurance loss following a water damage incident at the Children’s Hospital of Eastern Ontario (CHEO).

The applicants, property insurers (HIROC, HML, FM), sought to recover the amount they paid to CHEO from the respondent, a boiler and machinery insurer (RSA).

The court found that the applicants' valuation was based on their own replacement cost policies, which differed from RSA's policy mandating repair or replacement with property of 'like kind, capacity, size and quality.' The court accepted RSA's valuation of $104,541.85, which was significantly lower than the applicants' claim of $732,031.41, as it was the only valuation that properly applied the RSA policy's terms.

The Court of Appeal remitted the issue of whether a condominium corporation (MTCC 1056) was entitled to be indemnified by its property manager (Brookfield) for costs arising from a negligent estoppel certificate.

The property manager had been found negligent in preparing the certificate, making the condominium corporation vicariously liable to the plaintiff.

The court held that an implied right of indemnity exists at common law for a principal found vicariously liable for its agent's negligence.

Brookfield was ordered to indemnify MTCC 1056 for the costs paid to the plaintiff and the costs of the trial and appeal.

Following a Court of Appeal order, the Superior Court of Justice conducted a trial of an issue to determine the value of the plaintiff's townhouse as a two-storey unit versus a three-storey unit as of December 2, 2014.

The plaintiff had purchased the unit believing it was three storeys, but the third floor was illegally built into the common element space.

The court evaluated competing expert appraisal evidence, ultimately preferring the plaintiff's expert who conducted a thorough inspection and appropriately applied the direct comparison approach.

The court fixed the plaintiff's damages for the loss of the third floor at $465,000.

Supplementary reasons addressing implementation and costs following an appeal decision regarding a condominium dispute.

The court ordered a trial of an issue to determine the difference in value between a two-storey and three-storey townhouse unit.

The court denied prejudgment interest on the valuation amount, finding the loss crystallized on the date of the appeal decision.

The court also allocated trial and appeal costs among the parties, applying modified Sanderson orders to account for successful and unsuccessful claims against various defendants.

The appellant purchased a condominium townhouse advertised as three storeys, but later discovered the third floor was illegally built into the common element attic space.

She sued the condominium corporation, the property manager, her real estate lawyers, and the vendor.

The Court of Appeal held that the condominium corporation was liable for negligent misstatement for issuing a clean estoppel certificate despite the illegal third floor.

The court upheld the finding of solicitor negligence against the appellant's real estate lawyers for failing to review the vertical survey plans.

Damages were reassessed to compensate the appellant for the lost opportunity of owning a three-storey unit, and punitive damages against the vendor were upheld.

The defendant foreign hotel corporation brought a motion to set aside service of a statement of claim, arguing that service at a Toronto office operated by a marketing contractor did not constitute valid service under the Rules of Civil Procedure.

The plaintiff cross-moved for a declaration that service was proper or, alternatively, for validation of service.

The court applied the test for whether a foreign corporation carries on business in Ontario and examined the contractual marketing relationship between the defendant and the Ontario-based marketing company.

It held that the marketing activities were integral to the defendant’s business and constituted carrying on business in Ontario.

Service effected at the Toronto office was therefore valid, and the defendant’s motion was dismissed.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

Following a lengthy condominium dispute trial involving claims of solicitor negligence, construction defects, and condominium governance issues, the court addressed the allocation of costs among multiple parties.

The plaintiff succeeded against the solicitor defendant but failed against several other defendants, including the condominium corporation and property management company.

Applying the principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed reasonable expectations, proportionality, litigation conduct, and Rule 49 settlement offers.

The court issued a Sanderson order requiring the negligent solicitor defendant to pay the costs of the successful condominium defendant, while also apportioning part of the successful property manager’s costs between the plaintiff and the solicitor defendant.

Substantial costs awards were fixed reflecting the complexity and length of the litigation.

The appellants appealed an order requiring indemnification under an all risk insurance policy for losses of perishable food following a massive power failure in southern Ontario.

The court held that the blackout, not the lack of refrigeration, was the proximate cause of the direct physical loss.

It agreed that ambiguity in the exclusion clauses had to be construed in favour of the insured and distinguished prior authority based on materially different policy wording.

The appeal was dismissed, and appeal costs were awarded to the respondent.

The appellant insurer appealed a trial judgment finding that the respondent insured's 5R production facility was a separate location under the policy and that only one accident occurred.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the facility was added as a separate location by endorsement.

The Court also agreed that the accidental breakdown continued until the compressor was successfully repaired on the second attempt, meaning there was only one accident.

The appellant insurer appealed a declaration that the respondent insureds were entitled to full coverage of over $20 million for a property loss.

At the time of the loss, the insureds had entered into a conditional Agreement of Purchase and Sale for the property but had not yet obtained court approval.

The Court of Appeal found that the insureds had bargained away their beneficial ownership interest under the agreement and were therefore not entitled to full coverage.

However, the Court held that the insureds were entitled to limited coverage of $2.5 million under the policy's 'Acquired Locations' clause, as the term 'purchased' was sufficiently ambiguous to trigger the contra proferentem doctrine in their favour.

The appeal was allowed in part.

The appellant, Lafarge Canada Inc., sought a Bullock order regarding costs.

The Court of Appeal declined to make the order, noting that the appellant should have known the inclusion of the successful insurers as respondents on the appeal was unnecessary, as evidenced by the appellant abandoning the appeal against most of them at the end of oral argument.

The Court requested further submissions on whether the successful insurers should receive partial or substantial indemnity costs and whether costs should be fixed or assessed.

The plaintiffs, homeowners, sued Bertrand and Lafarge for damages resulting from defective concrete foundations caused by fly ash supplied by Lafarge.

The trial judge found Lafarge 80% liable and Bertrand 20% liable for approximately $20,000,000 in damages.

This appeal concerns the insurance coverage disputes between Bertrand, Lafarge, and their numerous primary and excess insurers.

The Court of Appeal upheld the trial judge's findings that the defective foundations constituted property damage under the CGL policies, that the continuous trigger theory applied to trigger all policies from 1986 to 1992, and that certain excess insurers had a duty to contribute to defence and third-party costs.

The appeal by Guardian Insurance was allowed regarding its duty to defend, but all other appeals and cross-appeals were dismissed.

The respondent credit union was assessed for business taxation under s. 7(1)(b) of The Assessment Act.

The assessment was confirmed by the Assessment Review Court but set aside by the District Court, which found the credit union's preponderant purpose was to provide loans to members at low cost, not to make a profit.

The Divisional Court and Court of Appeal upheld this decision.

The Supreme Court of Canada dismissed the appeal, affirming the 'preponderant purpose' test and concluding that the credit union was not carrying on a business for the purpose of the Act.