Rory Barnable

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.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.

In an appeal from Ontario, the appellants sought a stay of a defamation action on the basis of lack of jurisdiction and forum non conveniens.

The Court held that Ontario had a real and substantial connection because the alleged tort was published in Ontario and the plaintiff pleaded publication and reputational harm in that forum.

The Court also held that the appellants failed to show Quebec was clearly more appropriate, giving deference to the motion judge’s discretionary forum analysis.

The Court discussed concerns about forum shopping and noted, without deciding, that choice-of-law rules in multijurisdictional defamation may warrant future refinement.

The appeal was dismissed with costs.

Following a successful appeal by the municipality and elected candidates that upheld the validity of a municipal election, the court determined the costs of the proceedings.

The court held that the unsuccessful challenging candidates were not entitled to have their costs paid by the municipality, despite claiming public interest litigant status.

However, the court ordered the municipality to pay the partial indemnity costs of the successful elected candidates, recognizing they were blameless parties drawn into expensive litigation due to mistakes made by municipal election officials.

The court also ordered one of the challenging candidates to pay the costs of a motion he unreasonably opposed.

The appellants appealed a decision declaring the 2010 municipal elections for Ward 9 City Councillor and Ward 4 TDSB Trustee invalid due to election officials failing to sign Voters List Change Request Forms.

The Divisional Court allowed the appeal, finding that while the failure to sign the forms was an irregularity, it did not affect the result of the elections because the vast majority of the voters had signed declarations confirming their eligibility to vote.

The Court held that the elections were conducted in accordance with the principles of the Municipal Elections Act and set aside the order for by-elections.

During an appeal, an added party sought to raise a Charter challenge to provisions of the Municipal Elections Act.

The Divisional Court declined to hear the constitutional question, noting that the evidentiary record was woefully inadequate.

Furthermore, the order adding the party explicitly stated that it was not to unduly widen the scope of the appeal.

The court held that a Charter application could be brought at any time on a proper record, but it would not be heard in the current appeal nor referred back to the motions judge.

During an appeal regarding a municipal election, the intervenor/appellant sought to introduce affidavit material detailing after-the-fact efforts to determine voter eligibility through canvassing and signed forms.

The Divisional Court ruled the evidence inadmissible, citing concerns over its hearsay nature and lack of reliability based on how it was compiled.

Consequently, the responding affidavit material was also excluded.