Robert Wilmer Becker

This decision provides supplementary reasons for costs following two motions brought by the plaintiff.

The plaintiff's motions to set aside an administrative dismissal and to set aside an earlier order were unsuccessful against the Kendall Defendants.

The Kendall Defendants sought over $12,000 in partial and substantial indemnity costs.

The court found the plaintiff's motions were not unreasonable but ultimately unsuccessful.

It declined to award elevated costs due to a lack of reprehensible conduct by either party.

Considering the simplicity of the legal issues, overlap in motions, external difficulties (lost court file), and the plaintiff's financial circumstances, the court significantly reduced the requested costs, fixing them at $1,500 total, inclusive of HST and disbursements, payable within 180 days.

The plaintiff brought a motion to compel the defendant to deliver an affidavit of documents, but abandoned it after the defendant delivered the materials.

The defendant sought costs of the abandoned motion under Rule 37.09(3).

The court found the plaintiff acted unreasonably by setting a deadline and bringing the motion while knowing defendant's counsel was on vacation.

However, the defendant failed to provide a Bill of Costs and unnecessarily ran up the plaintiff's costs after the abandonment.

The court awarded the defendant nominal costs of $500.

Contractors sought declarations compelling three commercial general liability insurers to defend them in an underlying construction action concerning alleged defects in septic systems installed in a residential subdivision.

The court considered whether the pleadings disclosed “property damage” caused by an “occurrence” under the policies and whether exclusions, including the “your work” and “professional services” exclusions, applied.

Although the pleadings raised a mere possibility of property damage caused by an occurrence, the court found that the “your work” exclusion applied and that the subcontractor exception was not established on the pleadings because the alleged supplier of filter sand was merely a supplier and not a subcontractor.

As a result, the insurers had no duty to defend.

The motion for a declaration compelling a defence was dismissed.

The defendant brought a motion to set aside service and stay an Ontario action arising from a trip and fall accident that occurred in a retail store in New York State.

The court considered whether Ontario had jurisdiction over the foreign defendant using the real and substantial connection test and whether Ontario should decline jurisdiction under the doctrine of forum non conveniens.

Applying the framework from Van Breda, the court found significant connections between the plaintiffs’ claim and Ontario, including residency, damages, and treatment occurring in the province, as well as sufficient connection between Ontario and the defendant due to its participation in an international retail organization and cross‑border advertising through its website.

The court also concluded that Ontario remained the appropriate forum because most witnesses and evidence were located in Ontario and proceeding there would not be unfair to the defendant.

The motion to stay the proceedings was dismissed.

The appellant appealed a Small Claims Court decision dismissing her claim for defective workmanship and property damage against the respondent masonry company.

The trial judge had treated the respondent's final invoice as a written quotation that defined the oral contract, qualified the respondent's principal as an expert witness, and dismissed property damage claims as trivial.

The Divisional Court found these to be palpable and overriding errors.

The Court also applied the Consumer Protection Act, 2002, which had not been pleaded at trial, finding the respondent failed to provide a required written agreement.

The appeal was allowed, the trial judgment was set aside, and judgment was entered for the appellant for $10,000 plus interest and costs.

Following an appeal, the parties provided joint submissions regarding the costs of the trial.

The Court of Appeal ordered that the trial judgment be amended on consent to award the plaintiff fixed costs in the amount of $39,196.08.

The respondent was dismissed without cause from his managerial position after 13 months of service.

The trial judge awarded a base notice period of six months and added two three-month Wallace extensions for bad faith in the manner of dismissal, along with damages for mitigation expenses and loss of an Employee Stock Purchase Plan.

On appeal, the Court of Appeal upheld the six-month base notice period but set aside the Wallace extensions, finding no evidence of bad faith or high-handed conduct by the employer.

The court also adjusted the damages for mitigation expenses and the stock purchase plan.

The appellant insurer appealed an order appointing an appraiser under s. 128(5) of the Insurance Act, arguing the policy was void due to a material change in risk under Statutory Condition 4.

The Court of Appeal dismissed the appeal, finding that liability remained a live issue because the insurer chose not to cross-examine the insured on her affidavit asserting a valid policy.

The court noted that even if a breach occurred, relief from forfeiture might be available, making the appraisal process appropriate for resolving valuation issues.

The insurer appealed an arbitration decision ordering it to pay caregiver benefits, housekeeping expenses, vehicle modifications, supplementary medical expenses, case management services, and a special award under the Statutory Accident Benefits Schedule.

The Director's Delegate held that the 1995 amendments to the SABS-1994 applied to the 1994 accident, but upheld the arbitrator's finding that the insurer failed to reasonably schedule the insurer examinations.

The appeal was allowed in part to amend the vehicle modification order to allow the purchase of a single four-wheel drive automatic vehicle, and to rescind the award for case management services provided by a paralegal.

The remainder of the arbitration order, including the special award for unreasonable delay, was upheld.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

The insurer suspended her benefits after she failed to attend a rescheduled insurer's examination.

The arbitrator found the suspension was unlawful because the insurer applied the wrong version of the Statutory Accident Benefits Schedule and failed to schedule the examination at a convenient time, ignoring her psychologist's advice that she was too emotionally fragile to attend.

The arbitrator awarded caregiver benefits up to the two-year mark, ongoing housekeeping expenses, vehicle modifications to provide automatic transmissions, and various medical and rehabilitation expenses.

A 40% special award was granted against the insurer for unreasonably withholding benefits.