Robert J. Smith

The applicant leased a scissor lift to a construction company, which agreed to name the applicant as an additional insured on its commercial general liability policy but failed to do so.

After an inspector was injured using the lift, the applicant sought a declaration that it was an 'Unnamed Insured' under the respondent insurer's policy and entitled to a defence and indemnity.

The court found that while the applicant met the definition of an 'Unnamed Insured', the policy contained an unambiguous restriction limiting coverage to liability arising out of operations performed in connection with a contract performed for the applicant.

Since the inspection was performed for the property owner and not the applicant, the application for coverage was dismissed.

The moving parties brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The applicant sought leave to appeal orders that dismissed its cross-motion requiring the respondent to post the amount of a foreign arbitral award and ordered the applicant to post security for costs.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the application judge's decision because it failed to consider Article 36 of the International Commercial Arbitration Act, which governs the grounds for refusing recognition of an award and the specific circumstances for ordering security for costs.

The court noted the matter's importance to international comity.

Following the dismissal of the plaintiff's summary judgment motion regarding a commercial lease and parking dispute, the successful defendant sought costs of $586,141.79 on a substantial indemnity scale.

The court declined to award substantial indemnity costs, finding the plaintiff's conduct was not reprehensible and noting that Rule 49.10 limits a defendant to partial indemnity costs even when the plaintiff's claim is completely dismissed.

The court awarded the defendant costs of $398,000 on a partial indemnity basis, finding the time spent and hourly rates reasonable given the complexity and the $4.6 million claim.

The parties brought a motion to approve settlement agreements and distribution protocols in class actions arising from data breaches at BMO and CIBC (Simplii) that affected over 120,000 clients.

The proposed settlements provided a combined $22.9 million to compensate class members for time spent and inconvenience, with tiered compensation based on the sensitivity of the compromised information.

The court applied the Mancinelli factors and found the settlements to be fair, reasonable, and in the best interests of the class, particularly given the litigation risks associated with the tort of intrusion upon seclusion for third-party hacker intrusions.

The plaintiff brought a motion for approval of class counsel fees and a representative plaintiff honourarium following a class action settlement.

The court approved a $5,000 honourarium for the representative plaintiffs, finding they meaningfully contributed to access to justice and assumed no financial risk.

The court also approved class counsel fees calculated at 25% of the recovery, resulting in a 2.6 multiplier on docketed time, which was deemed appropriate given the significant risks assumed by counsel.

The plaintiffs brought a motion to approve a class action settlement arising from data breaches at BMO and CIBC's Simplii Financial, which affected over 120,000 clients.

The hackers accessed personal information and demanded ransom payments.

The proposed settlement provided for a total payment of approximately $23 million, distributed among class members based on the type of information compromised and time spent addressing the breach.

The court applied the Mancinelli factors and found the settlement to be fair, reasonable, and in the best interests of the class, noting the litigation risks associated with the tort of intrusion upon seclusion for third-party hacker intrusions.

In a class proceeding against the Bank of Montreal, class counsel brought a motion for approval of their fees and an honourarium for the representative plaintiffs.

The court approved a $5,000 honourarium, finding the representative plaintiffs meaningfully contributed to access to justice and assumed active roles without financial risk.

The court also approved class counsel's fees at 25% of the settlement funds, totaling over $3.6 million plus disbursements, noting the 2.6 multiplier was appropriate given the significant risks assumed by counsel.

This decision concerns a new trial to determine if the accused, René Goudreau, was not criminally responsible (NCR) by reason of mental disorder for the first-degree murder of his mother.

The accused had previously been convicted by a jury, but the Ontario Court of Appeal ordered a new trial solely on the NCR issue.

The court considered expert psychiatric evidence, the accused's behaviour before and after the offence, and evidence of extensive planning related to life insurance policies on the victim.

Despite evidence of mental disorder, the court found that the accused failed to prove on a balance of probabilities that he was incapable of appreciating the nature and quality of his acts or knowing they were wrong.

The court concluded that the accused engaged in detailed planning for financial gain and acted rationally in many aspects, tipping the scales against an NCR finding.

The Professional Centre brought a motion for summary judgment against The Ottawa Hospital concerning the interpretation of parking provisions in a 49-year lease and related Memorandum of Agreement.

The Professional Centre alleged breaches regarding the availability of 250 parking spaces, remittance of revenue from 40 parking spaces, and unauthorized use of encroaching parking spaces and an access road.

The Hospital denied any breach, asserting it exercised contractual discretion in good faith.

The court dismissed all of the Professional Centre's claims, finding no breach of the lease, that the Hospital had an implied easement over the access road, and that the Professional Centre failed to prove damages, including a high vacancy rate, were caused by the alleged parking issues.

On a contested passing of accounts arising from a complex cross-border intestacy involving real property, artworks, and personal property located in Mexico, the court held that an estate trustee is not required to produce a written receipt for every expense if accurate accounts, sworn explanations, and corroborating records establish that the disbursements were reasonably incurred for the estate’s benefit.

Applying the ordinary prudence and diligence standard from trustee accounting jurisprudence, the court rejected extensive objections alleging mismanagement, misappropriation, and failure to follow the wishes of the majority beneficiaries.

Most challenged expenses, including memorial costs, travel, staffing, legal fees, and marketing assistance, were approved, subject to limited disallowances and correction of a $50,000 accounting error.

Trustee compensation was fixed at $200,000 exclusive of HST using the tariff cross-checked against the five established compensation factors.

The applicant hospital sought judicial review of an arbitrator's decision overturning the transfer of an employee who had previously been disciplined for assaulting a co-worker.

The hospital argued the transfer was an administrative decision to protect the complainant under the Occupational Health & Safety Act.

The arbitrator found the transfer constituted a second penalty for the same offence, violating the principle of double jeopardy.

The Divisional Court dismissed the application, holding that the arbitrator's decision was reasonable and properly balanced the competing values of workplace safety and protection against double jeopardy.

The three offenders were convicted of kidnapping, unlawful confinement, break and enter, and sexual assault after breaking into the victim's apartment, confining her, and sexually assaulting her with hair removal cream.

The principal offender, who orchestrated the attack out of revenge and distributed intimate images of the victim online, was sentenced to 7 years in prison.

The two co-offenders, who acted as aiders and did not participate in distributing the images, were each sentenced to 4 years in prison.

All offenders received credit for pre-sentence custody and strict bail conditions.

The applicant sought judicial review of an umpire's appraisal award determining the actual cash value of a resort property destroyed by fire.

The applicant argued the umpire exceeded his jurisdiction by deciding the depreciation rate, which it claimed the parties had already agreed upon, and breached procedural fairness by not adjourning the hearing.

The Divisional Court dismissed the application, finding the umpire's decision reasonable as the depreciation rate was clearly in dispute based on the appraisal briefs.

The court also held that the informal appraisal process under section 128 of the Insurance Act was conducted fairly and the respondent's appraiser owed no duty of procedural fairness to the applicant.

The moving party, a veterinarian previously found guilty of professional misconduct, brought three motions seeking reasons from the Complaints Committee, admission of fresh evidence, and a stay of penalties.

The Divisional Court dismissed the motions, finding it lacked jurisdiction as there was no existing proceeding.

The court also held that the issues raised were res judicata, having been previously decided by the Discipline Committee and the Divisional Court on appeal.

The motions were deemed an abuse of process and dismissed with costs awarded to the respondent.

The moving parties sought an interlocutory injunction to prevent the responding parties from opening a competing Caribbean fusion restaurant in close proximity to their existing restaurant.

The responding party, a former director of the moving party's corporation, had signed a unanimous shareholder agreement containing a non-competition clause.

The court applied the RJR-MacDonald test and found a serious issue to be tried regarding the enforceability of the non-competition clause and breach of fiduciary duty.

The court concluded that opening a competing business nearby would cause irreparable harm not compensable in damages, and the balance of convenience favoured granting the injunction.

Following the dismissal of the moving party's motion for leave to appeal, the responding parties sought costs.

The court had initially ordered no costs because the respondents had not filed costs outlines.

The respondents subsequently contacted the court to request costs, arguing they had uploaded a bill of costs late or should be allowed to make submissions after the decision.

The Divisional Court declined to amend its order, noting that the scheduling direction clearly required all costs materials to be uploaded by a specific date, consistent with the court's practice direction.

No costs were awarded.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $3,744.26.

The moving party brought motions for leave to appeal three orders made by Faieta J. and J. Wilson J. in July and August 2020.

The Divisional Court dismissed the motions for leave to appeal and awarded costs to the responding party fixed at $7,500.

The moving party sought leave to appeal the Assessment Review Board's decisions.

The Divisional Court granted leave to appeal on the issue of whether the Board breached the moving party's procedural fairness rights.

The respondent and the Board took no position on the motion, and no costs were ordered.