Robert Wilfred Walter Dowhan

The defendants and third parties brought motions to dismiss three related actions for delay, citing the plaintiffs' prolonged inaction over several years.

The plaintiffs brought a cross-motion for a status hearing and leave to amend their statement of claim.

The court found that the plaintiffs failed to provide an acceptable explanation for the significant delay and did not rebut the presumption of non-compensable prejudice to the defendants, particularly due to the death of a key witness.

Consequently, the court granted the defendants' motions to dismiss all actions for delay and dismissed the plaintiffs' cross-motion.

This costs endorsement followed a successful appeal by the appellants (original plaintiffs).

The Court of Appeal had previously allowed their appeal, permitting their entire claim to proceed to trial, and ordered costs of the appeal in their favour.

This endorsement specifically addresses the costs of the motion heard below.

The appellants sought approximately $65,400 in partial indemnity costs for the motion, while the respondents argued for a maximum of $30,000.

The court awarded the appellants $55,000 plus HST for the motion costs, considering the respondents' own bill of costs, the critical importance of the issues raised in the motion (partial summary judgment on core claims and striking a party), and the increased complexity and protraction caused by the motion.

This appeal concerns an insurance dispute following a fire that destroyed a building and valuable accounting records.

The insured submitted claims, some of which were subject to umpire appraisal awards under the Insurance Act.

The insurer refused to pay other claims, including those filed before appraisals and not covered by the appraisal process.

The insured brought an action against the insurer and its adjuster for breach of contract, negligence, and bad faith.

The motion judge granted partial summary judgment, dismissing claims related to building and valuable papers losses and striking the claim against the adjuster.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate due to intertwined issues and the potential for inconsistent findings.

It held that the appraisal process under the Insurance Act is not a "one-shot" valuation and does not preclude further claims for different expenses under the same head of coverage if the awards were expressly confined.

The court also found that the motion judge erred in striking the personal claim against the adjuster, as an employee can be personally liable for tortious conduct even if acting in the course of employment.

The Estate of John Hemlow sought a declaration that Co-operators General Insurance Company had a duty to defend an action against the Estate arising from a workplace accident involving an ammonia leak.

Co-operators denied coverage based on a "Total Pollution Exclusion" clause in Hemlow's Commercial General Liability (CGL) policy.

The application judge found a duty to defend, concluding the exclusion was ambiguous and applied only to environmental pollution.

On appeal, the Court of Appeal for Ontario upheld the duty to defend, finding that the claim against the Estate was for negligence and breach of contract, which falls within the CGL policy's coverage, and the pollution exclusion did not apply as the claim was not for environmental pollution or government-mandated cleanup costs.

The Court of Appeal for Ontario allowed an appeal by an insurer, Co-operators General Insurance Company, finding it had no duty to defend its insureds, Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc., against a class action and a third-party claim.

The claims arose from a data breach where a confidential report was hacked from FCS's website and posted online.

The court held that the data exclusion clauses in both the Commercial General Liability (CGL) and Professional Liability policies were unambiguous and clearly excluded coverage for claims arising from the electronic distribution or display of data.

The court rejected arguments that the exclusion clauses nullified the policies or that there were non-electronic claims, emphasizing that the substance of the claims solely related to online data dissemination.

The plaintiffs brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to file further affidavits after having conducted cross-examinations, in connection with the defendants' motions for security for costs.

The court applied a flexible, contextual four-part test, finding the evidence relevant, responsive to matters raised on cross-examination, causing no non-compensable prejudice (as further cross-examination was permitted), and with a reasonable explanation for its late submission due to tight timelines.

Leave was granted, emphasizing the importance of allowing claims to be determined on their merits, especially where impecuniosity is alleged.

The plaintiff, a wedding and convention center, sued its insurer for damages caused by a major rainstorm, claiming under sewer back-up and flood endorsements, and for business interruption, extra-contractual, and punitive damages.

The court found that only the sewer back-up endorsement applied, for which the policy limit of $500,000 had already been paid.

The flood endorsement did not apply as the damage was caused by "Surface Water" (rain pooling on the ground), which was explicitly excluded and not covered by the endorsement's definition of "flood" (overflow of a body of water).

The business interruption claim was dismissed because the business did not cease operations, and any alleged loss of revenue was attributed to the plaintiff's decision to remain open against the insurer's advice to mitigate damages.

Claims for extra-contractual and punitive damages were also dismissed due to the absence of a breach of contract by the insurer and lack of exceptional misconduct.

The plaintiff brought a motion to extend the time for service of its Notice of Action and Statement of Claim nunc pro tunc to February 14, 2017, following a two-month delay.

The defendant insurer opposed, arguing prejudice due to the expiry of the policy's one-year limitation period and an inadequate explanation for the delay.

The court found the plaintiff provided a reasonable explanation (inadvertence and desire not to disrupt settlement negotiations) and successfully rebutted the presumption of prejudice, noting the insurer had early notice and access to information.

The court clarified that issuing a Notice of Action within the limitation period stops the limitation clock, mitigating prejudice from subsequent late service of the Statement of Claim.

The motion was granted, validating service and ordering the defendant to file a Statement of Defence.

The appellants appealed a motion judge's decision interpreting a landlord-tenant agreement as a complete release of the tenant from liability for fire damage.

The appellants argued the release applied only to the tenant personally but preserved a subrogated claim by the landlord's insurer against the tenant's insurer.

The Court of Appeal upheld the motion judge's interpretation, finding that releasing the tenant precluded any subrogated claim against the tenant's insurer.

The appeal was dismissed with costs awarded to the respondent.

The defendant, a former tenant, brought a motion for summary judgment to dismiss the plaintiffs' action for damages caused by a fire in his apartment.

The defendant argued that a letter from the plaintiffs, combined with an agreement to terminate his tenancy, constituted a release from liability for the fire.

The plaintiffs contended that the letter was not a release or was only a partial release, preserving their right to pursue a subrogated claim through their insurer.

The court found that the letter and termination agreement, read as an integrated whole, plainly released the defendant from liability for the fire, interpreting the phrase "damages will be dealt with between the insurance companies" to mean without the defendant's involvement.

The motion for summary judgment was granted, and the plaintiffs' action was dismissed with costs.

The plaintiff claimed her water well was contaminated by municipal sewage waste (biosolids) applied to her neighbor's farmland, alleging nuisance and negligence.

The defendant brought a third-party claim against the farm lessee and the biosolids applicator.

The court dismissed the plaintiff's action, finding that she failed to prove, on a balance of probabilities, that the biosolids application caused the well contamination.

Crucially, no E. coli., the primary indicator of sewage contamination, was detected in any water samples, despite the presence of other bacteria commonly found in the natural environment.

The court also dismissed the third-party action.

The plaintiffs, DK Manufacturing Group Ltd. and S.G. Investments Group Ltd., sought insurance proceeds and damages for bad faith from Co-operators General Insurance Company following a fire and water damage incident.

Co-operators brought a motion for partial summary judgment, arguing that the claims for insurance monies were resolved by a binding appraisal process and that a one-year contractual limitation period barred other claims.

The court found that Form AB, containing contractual statutory conditions including a one-year limitation period and appraisal process, applied to both policies.

The appraisal awards were binding, dismissing claims for further insurance monies.

However, the one-year contractual limitation period did not apply to the extra-contractual bad faith claims, which are governed by the two-year limitation period under the Limitations Act, 2002.

The defendant Constantine Glinos brought a motion for summary judgment on his cross-claim against Chicago Title Insurance Company.

Glinos, a lawyer, sought indemnity for legal costs incurred defending a professional negligence claim brought by purchasers (Small and Kondic) related to a real estate transaction.

The purchasers had also sued Chicago Title under a title insurance policy.

Glinos argued that Chicago Title's indemnity obligation to lawyers, established through an agreement with the Law Society of Upper Canada, applied because the purchasers' claims "arose under the title insurance policy," based on the pleadings rule from Stewart Title Guarantee Co. v. Zeppieri.

Chicago Title denied liability, arguing Glinos's alleged material misrepresentation in the application invalidated the policy and that the claim was for professional malpractice, not under the policy.

The court granted summary judgment to Glinos, finding that the purchasers' claims, as pleaded, arose under the title insurance policy, triggering Chicago Title's indemnity obligation for Glinos's defence costs.

The court also found no material misrepresentation that would invalidate the policy.

Following judgment in a residential construction dispute, the successful homeowners sought a costs award of over $26,000 on a partial indemnity basis.

The builder argued it achieved greater success because most of the claims were dismissed and only a small portion of the damages sought was awarded.

The court noted the modest damages award fell well within the monetary jurisdiction of the Small Claims Court and that the matter could have proceeded under the Simplified Procedure rules after the lien action settled.

The court also found several claims advanced by the homeowners lacked merit and unnecessarily lengthened the trial.

Exercising its discretion under Rule 57.05 and Rule 76.13(3), the court ordered that each party bear its own costs.

Homeowners pursued a cross-claim against a modular home builder alleging numerous construction deficiencies following completion of a custom home under an Agreement of Purchase and Sale and subsequent amending agreements.

The court assessed allegations relating to stair staining, concrete drainage, HVAC zoning and dampers, hot water systems, UV water treatment units, flashing, roof workmanship, and contractual obligations under a Homeowner Ultimate Guarantee (HUG) certificate.

Most alleged deficiencies were dismissed due to lack of expert evidence or contractual support.

However, the court found a concrete slope deficiency and incomplete copper flashing and interpreted the HUG certificate as guaranteeing completion of listed items within a specified timeframe.

Damages were limited due to the homeowners’ duty to mitigate, resulting in reduced penalty compensation.

The plaintiff brought a motion under rule 26.01 of the Rules of Civil Procedure to add a former employee and a corporation as defendants after the expiry of the two‑year limitation period.

The motion to add one proposed defendant had been served within the limitation period but was adjourned and not argued until after the limitation period expired.

The court held that a motion to add a party need only be served within the limitation period; it need not also be argued and determined before the limitation period expires.

With respect to the corporate defendant, the issue of discoverability was a question of fact and the plaintiff was permitted to add the corporation with leave for the defendants to plead the Limitations Act.

The motion to add both parties was granted subject to procedural timelines.

Following a trial in which the plaintiff’s oppression-style claim against a condominium corporation was dismissed, the court determined costs.

The defendant condominium corporation sought full indemnity costs, arguing that condominium litigation typically warrants such recovery and that the plaintiff made serious but unproven allegations of dishonesty.

The court held that the enhanced full-indemnity regime under s.134 of the Condominium Act applies only to compliance order proceedings and not to an oppression claim under s.135.

Nevertheless, the court found that the plaintiff’s unsubstantiated allegations of deceit and dishonesty against the corporation and its directors justified elevated costs.

Costs of the action and trial were therefore awarded on a substantial indemnity basis, with quantification referred to assessment if the parties could not agree.

A condominium unit owner challenged the condominium corporation’s decision to replace garage roof decks and impose special assessments to fund the work, alleging the project constituted a substantial alteration to common elements requiring approval under s.97(4) of the Condominium Act, 1998 and seeking oppression remedies under s.135.

The court held the work constituted repair and maintenance of common elements within s.97(1), undertaken using materials reasonably close in quality to the original in accordance with modern construction standards.

As such, the project was not a substantial alteration requiring owner approval.

The evidence also failed to establish oppressive, unfairly prejudicial, or unfairly disregarding conduct by the corporation.

The corporation was entitled to levy special assessments and enforce payment through a lien.

Following disposition of an application concerning condominium governance and alleged oppression, the court determined costs.

Although the applicant obtained a remedial order requiring the condominium corporation to comply with governance requirements under the Condominium Act, 1998, the central oppression claim concerning outdoor storage in common elements was unsuccessful.

The court found the respondents were largely successful and entitled to partial indemnity costs.

However, their costs were reduced to reflect the remedial governance order obtained at the instance of the applicant.

Costs were fixed at $12,288.48 inclusive of fees, disbursements, and HST.

Following dismissal of summary judgment motions brought by certain defendants, the court addressed costs.

Although the plaintiff and a defendant successfully opposed the motions, the court found the issues were close calls and that it had not been unreasonable for the moving defendants to bring the motions.

Substantial or elevated indemnity costs were rejected as no reprehensible misconduct was established.

Applying the reasonableness factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed partial indemnity costs for both successful parties and ordered that those costs be payable in the cause.