Robert L. Love

The court granted summary judgment in favour of Makita Canada Inc., dismissing Mark Hennebury’s personal injury action as statute-barred by the 15-year ultimate limitation period under the Limitations Act, 2002.

The court found that the alleged negligence related to the manufacture and distribution of a power router occurred more than 15 years before the action was commenced, and that there was no continuing cause of action to toll the limitation period.

The court also held that the matter was suitable for summary judgment and did not require a trial to resolve credibility issues.

The insured property owner appealed the dismissal of its claim for coverage following a wall collapse, while the insurer appealed the finding of coverage for a subsequent arson fire at the same vacant building.

The Court of Appeal dismissed both appeals.

The wall collapse was not proven to be a fortuitous event.

For the fire loss, the insurer was bound by promissory estoppel preventing reliance on a vacancy exclusion, and its unilateral attempt to amend the policy to exclude arson was invalid under s. 124 of the Insurance Act for lack of written consent.

This endorsement determines costs following a trial involving two consolidated insurance claims: a Wall Collapse Claim and a Fire Loss Claim.

The plaintiffs (Lalani) succeeded on the Fire Loss Claim against Intact Insurance, being awarded substantial damages, while their Wall Collapse Claim was dismissed.

A negligence claim against the Broker (D.M. Edwards and CG&B) related to the Fire Loss Claim was also dismissed.

The court allocated costs 70% to the Fire Loss Claim and 30% to the Wall Collapse Claim.

Lalani was awarded partial and substantial indemnity costs against Intact for the Fire Loss Claim.

No costs were awarded for the dismissed claim against the Broker due to their adversarial position and the nature of their offer to settle.

Intact was awarded partial and substantial indemnity costs against Lalani for the dismissed Wall Collapse Claim, based on a public policy objective of promoting settlements.

The plaintiffs sought coverage under their commercial property insurance policies for a wall collapse and a subsequent arson fire that destroyed their heritage building.

The insurer denied coverage for both claims, relying on wear and tear exclusions for the wall collapse and a vacancy exclusion for the fire.

The court dismissed the wall collapse claim, finding the plaintiffs failed to prove it was caused by a fortuitous event.

However, the court granted the fire loss claim, holding that the insurer's unilateral amendments to the policy were void under s. 124 of the Insurance Act and that the insurer was estopped from relying on the vacancy exclusion because it renewed the policy and accepted increased premiums with full knowledge that the building was vacant.

The plaintiffs were awarded over $5.8 million in damages.

A concurrent negligence claim against the plaintiffs' insurance brokers was dismissed.

The moving party, a corporate defendant, brought a motion for a complex protective order before producing an affidavit of documents or reviewing its own relevant documents.

The plaintiff consented, but the self-represented co-defendant did not respond.

The court dismissed the motion, finding it premature and the proposed order over-broad.

The court noted that the moving party failed to identify specific harm associated with the disclosure of particular documents and relied on sweeping generalizations instead of the existing protections under the Rules of Civil Procedure.

Enterprise Rent-A-Car appealed a decision finding it was the first loss insurer in a motor vehicle accident claim.

The insured was a listed driver under her father's standard Ontario Automobile Policy issued by Intact Insurance, but not a named insured.

The policy provided rental vehicle coverage only when rented by a named insured or their spouse.

The court held that the priority rules under the Insurance Act depend on the existence of coverage under the policy.

Since no coverage was available to the insured for rental vehicles under Intact's policy, the priority provisions did not apply, and Enterprise's insurer was responsible as the first loss insurer.

This costs endorsement followed a successful status hearing motion by the plaintiffs and a partially successful cross-motion by the defendants.

The plaintiffs sought substantial indemnity costs for the status hearing, citing the defendants' litigation conduct.

The court awarded the plaintiffs partial indemnity costs for the status hearing, finding no basis for substantial indemnity as the criticized conduct related to the general litigation, not the specific motion.

For the cross-motion, where success was divided, the court ordered each party to bear their own costs.

The plaintiffs sought a status hearing under Rule 48.14 to allow their action to proceed despite a five-year delay and requested a timetable.

The defendants opposed, seeking dismissal due to non-compensable prejudice from a key witness's death and alleged spoliation of evidence.

The court found the plaintiffs provided acceptable explanations for the delay, which was largely attributable to interlocutory proceedings and the defendants' actions.

The court also determined that any prejudice from the witness's death or evidence destruction did not arise from the delay necessitating the status hearing and was not so extensive as to prevent a fair trial.

The defendants' cross-motion to strike parts of a reply affidavit was granted in part.

The main motion to allow the action to proceed was granted, and a timetable was imposed.

The appellants appealed the dismissal of their negligence and occupiers' liability claim arising from a fall down stairs at a restaurant.

The motion judge dismissed the original claim based on the condition of the stairs but permitted amendment to plead an alternative theory based on failure to advise of an accessible washroom on the main floor.

A second motion judge dismissed the amended claim, finding it did not constitute a new cause of action and was therefore statute-barred.

The Court of Appeal upheld the dismissal but found the motion judge erred in his reasoning.

The amended claim did constitute a new cause of action based on a different duty of care and was properly barred by the Limitations Act as it was raised outside the two-year limitation period.

The plaintiff was injured in a motor vehicle accident while a passenger in a van driven by a 16-year-old unlicensed driver.

The driver had taken the van, owned by his mother, without her permission while she slept.

In this liability trial, the court found the driver negligent but dismissed the claims against the mother, finding she did not give express or implied consent to possession of the vehicle and was not negligent in securing her keys.

The court also found the plaintiff ought to have known the vehicle was taken without consent, thereby excluding him from uninsured motorist coverage under the mother's insurance policy.

The Minister of Finance, on behalf of the uninsured defendant driver, brought a motion seeking to preclude the co-defendant insurer from relying on a policy exclusion for operating a vehicle without consent.

The moving party argued that because the insurer had previously settled the plaintiff's statutory accident benefits claim, relying on the exclusion in the tort action constituted an abuse of process.

The court dismissed the motion, finding that the accident benefits settlement was explicitly without prejudice and did not constitute an admission of liability that would prevent the insurer from defending the tort claim on its merits.

The defendant restaurant brought a motion for summary judgment arguing that the plaintiffs' amended statement of claim advanced a new cause of action barred by the Limitations Act.

The plaintiffs had previously had their claim regarding a slip and fall on the restaurant's stairs struck, but were permitted to amend to plead a failure to advise of a main floor washroom.

The court found that while the amendment did not constitute a new cause of action, there was no genuine issue requiring a trial because the underlying complaint regarding the condition of the stairs had already been dismissed.

The motion for summary judgment was granted and the amended claim was dismissed.

The plaintiffs sought court approval for the settlement of a personal injury claim arising from a catastrophic motor vehicle accident caused by a defective General Motors ignition switch.

The injured plaintiff, a party under disability, received a substantial settlement through the GM Ignition Switch Claims Resolution Facility.

The court approved the settlement, including a sealing order to keep the settlement amount confidential, as required by the settlement terms.

The court also approved the plaintiffs' solicitors' contingency fee, finding it reasonable given the excellent result achieved, the initial risks of the litigation, and the solicitors' undertaking to cover future guardianship legal costs.

Finally, the court approved the proposed management plan for investing the settlement funds.

The appellants appealed a summary judgment that dismissed their action in negligence and breach of contract against the respondent regarding a slip and fall on restaurant stairs.

The motion judge had dismissed the claim regarding hazards on the stairs but allowed the appellants to amend their claim to plead a breach of the Consumer Protection Act for failing to advise of a main floor washroom.

The Court of Appeal dismissed the appeal, finding the motion judge correctly dismissed the first branch of the claim due to a lack of evidence of stair hazards, and properly preserved the second branch regarding the failure to advise.

The self-represented plaintiffs sought leave to appeal an order refusing their request to adjourn the trial.

The plaintiffs wanted an adjournment to challenge a settlement approved for a co-plaintiff under a disability.

The motion judge had denied the adjournment, finding no prejudice to the plaintiffs proceeding to trial while continuing to challenge the settlement.

The plaintiffs failed to attend the trial, resulting in the dismissal of their claim.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance.

The applicants, Lina Lochner and Paul Lochner, brought a motion to set aside a judgment dismissing their action for failure to appear at trial.

The court dismissed the motion, finding that their non-attendance was deliberate and unreasonable, and that they failed to provide prima facie evidence of the merits of their own claims, focusing instead on their settled co-plaintiff's claim.

The court emphasized that deliberate non-attendance, even by self-represented litigants, does not warrant setting aside a judgment, and that access to justice is not without limits when litigants exhibit contemptuous behavior.

The Superior Court of Justice issued a costs endorsement following the dismissal of the plaintiffs' action due to their non-appearance at trial.

The defendants sought costs on a substantial indemnity basis.

The court awarded costs, fixing them at $42,342.98 plus post-judgment interest, payable by the plaintiffs Lina and Paul Lochner.

The court determined that while general costs for the action should be on a partial indemnity basis, costs for trial preparation thrown away due to the plaintiffs' deliberate non-appearance warranted a substantial indemnity scale.

The self-represented plaintiffs moved to consolidate a Rule 7.08 settlement approval motion, brought by the Public Guardian and Trustee on behalf of a co-plaintiff under disability, with the upcoming trial.

The court dismissed the motion, holding that Rule 6 only permits consolidation of 'proceedings', and a motion is not a proceeding.

Furthermore, the court noted that consolidation would be inappropriate as it would expose the trial judge to privileged settlement information, prejudicing the plaintiffs.

The court also ordered the sealing of an affidavit containing privileged settlement details.

Following the dismissal of the appellant's appeal, the respondents sought costs.

The appellant did not file responding submissions.

The Court of Appeal awarded costs to the fully successful respondents, fixed at $5,000 on a partial indemnity basis.

The moving defendants sought judgment enforcing an alleged oral settlement reached during a pre‑trial conference.

The responding plaintiffs disputed that a binding settlement had been made and argued that communications from the pre‑trial could not be relied upon due to settlement privilege and Rule 50.09 of the Rules of Civil Procedure.

The court held that communications made during settlement discussions, including those occurring at a pre‑trial conference, may be admitted where necessary to prove the existence or terms of a settlement agreement.

Based on uncontradicted affidavit evidence from counsel, the court found that the plaintiffs made an offer to dismiss the action against the moving defendants without costs and that the offer was accepted.

The court concluded a valid settlement existed and exercised its discretion to enforce it.