Ross Donald George William Rollo

The parties settled damages in a motor vehicle accident where a pedestrian was struck.

The defendants brought a motion to vary the usual order of presentation at trial, arguing they bear the onus of disproving negligence under s. 193(1) of the Highway Traffic Act.

The court dismissed the motion, finding that the plaintiff still bears the burden of proving at least one issue on liability, such as that she was struck by the defendants' vehicle, and therefore there was no basis to depart from the usual order of presentation.

The plaintiffs brought a motion to determine the admissibility of a post-surgery photo of the plaintiff's head and a pre-operative CT scan for use in their opening address to the jury in a liability-only trial.

The defendants objected on grounds of relevance and prejudice.

Applying the four-part test from Whitford v. Swan, the court allowed the photo, finding it relevant to explain the plaintiff's lack of memory and not unduly prejudicial, provided it was proven at trial.

However, the CT scan was disallowed due to its narrative commentary and embellishments, which were deemed prejudicial and of low probative value given that damages were settled.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for coverage of water damage to her property.

The insurer argued that the policy's vacancy exclusion applied because the plaintiff, who had moved to a retirement home due to cognitive impairment, had no intention of returning.

The court found that the plaintiff lacked the capacity to form an intention to return and that there was no objective plan for her to do so.

The court concluded there was no genuine issue for trial regarding the vacancy exclusion and granted the summary judgment motion, dismissing the action.

The plaintiff was injured in a motor vehicle accident while a passenger in a taxi.

The taxi collided with a vehicle owned by the defendant mother and driven by her unlicensed, intoxicated son.

The mother's insurer brought a motion for summary judgment to dismiss the plaintiff's uninsured coverage claims, arguing the son had implied consent to drive.

The mother brought a cross-motion to dismiss the action against her, arguing her son drove without consent.

The court found the mother had explicitly forbidden her son from driving her vehicle years prior, kept the keys in their usual place, and had no reason to suspect he would take the car while she was on vacation.

The court concluded the son did not have implied consent, dismissing the action against the mother and dismissing the insurer's motion.

The defendants brought a motion for leave to appeal the order of Baltman J. dated November 29, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $5,222.67.

This costs endorsement follows a bifurcated jury trial where liability was determined, finding 92% against the plaintiffs and 8% against the defendants.

The plaintiffs sought approximately $120,000 in partial indemnity costs plus $20,000 in disbursements, while the defendants proposed approximately $40,000 plus disbursements.

The court awarded the plaintiffs $55,000 in partial indemnity costs plus disbursements, noting that the plaintiffs' bill of costs conflated liability and damages issues.

The court commended counsel for their informed approach to bifurcating the trial and suggested that the Civil Rules Committee consider amending the Rules of Civil Procedure to allow judicial discretion in bifurcating liability and damages without party consent.

Two consolidated actions were brought by food industry companies and related parties against their commercial insurer following losses arising from an Indian meal moth infestation.

The first action sought indemnification for lost rental income and a bonus allegedly owed to the principal owner.

The second action sought indemnification for alleged theft of equipment and assets by a court-appointed receiver, resulting in business interruption losses.

The trial judge dismissed the first action entirely, finding the losses were indirect and not covered by the policy.

In the second action, the trial judge dismissed the property claim as time-barred but allowed the business interruption claim to proceed in part by applying a rolling limitation period.

On appeal, the Court of Appeal upheld the dismissal of the first action and reversed the trial judge's application of a rolling limitation period to the business interruption claim, finding that the insurer's obligation to indemnify was not a recurring contractual obligation.

Both actions were dismissed in their entirety.

This costs endorsement followed the dismissal of Edwin Allan's motion for a certificate of pending litigation (CPL).

Gordon and Joyce Allan, the successful responding parties to the CPL motion, sought $65,000 in substantial indemnity costs, citing formal and informal settlement offers.

Edwin Allan argued the quantum was excessive and payment should be deferred until trial, alleging the respondents inflated costs.

The court determined that Gordon and Joyce Allan were not entitled to substantial indemnity costs under Rule 49.10(2) as they were the responding parties.

The court fixed partial indemnity costs at $20,000, inclusive of disbursements and HST, to be paid by Edwin Allan within 60 days, finding the requested amount exorbitant given the motion's simplicity and the retention of senior counsel.

Plus Development Group Corp. brought a motion to oppose the confirmation of a Master's Report, which had awarded Roni Excavating Ltd. $523,241.99 plus costs for excavation work, including extras for the removal of contaminated soil.

Plus Development argued that the Master erred in evidentiary rulings, findings of fact regarding Roni Excavating's knowledge of soil conditions, and the authorization of extras.

The court dismissed Plus Development's motion, confirming the Master's Report, finding no palpable or overriding error in the Master's evidentiary rulings or findings of fact.

The court affirmed that Roni Excavating was entitled to charge for the removal of contaminated material as an extra, as contemplated by the contract and authorized by Plus Development's agent.

The plaintiff excavation contractor brought a construction lien claim against the defendant developer for unpaid contract work and extras.

The primary dispute was whether the plaintiff was entitled to charge extra for disposing of contaminated soil, which the defendant argued was included in the fixed contract price.

The court found that the defendant's agent had represented the soil as clean and that the parties had agreed to an extra charge of $47 per metric tonne for contaminated materials.

The court awarded the plaintiff $523,241.99 for the extras, finding the defendant liable for the increased disposal costs and other authorized scope changes.

The appellant appealed a summary judgment order dismissing his claim for damages arising from a motor vehicle accident.

The motion judge had concluded that the accident was a straightforward rear-end collision and that the appellant, as the rear-ending party, failed to discharge his onus of proving the collision did not arise from his negligence.

The appellant challenged the motion judge's findings on three grounds: improper judicial notice of scientific and technical matters, misapprehension of evidence, and erroneous conclusion that there was no genuine issue requiring trial.

The Court of Appeal dismissed the appeal, finding no extricable error in principle or palpable and overriding error in the motion judge's assessment.

The moving parties brought a motion for contempt against the responding party, a judgment debtor, for failing to answer written interrogatories.

The court previously found the responding party in contempt and adjourned sentencing to allow him to purge.

The court found that the responding party's subsequent answers were inadequate, obfuscating, and failed to provide key financial information, rejecting his claims that poor health prevented compliance.

As a penalty, the court prohibited the responding party from taking any steps in this or related litigation until the contempt is purged.

Jacobus Hanemaayer was found in contempt of court for wilfully refusing to comply with orders.

Despite claims of poor health and age, he repeatedly failed to appear in court and provided insufficient medical evidence.

The court found his health claims to be a "sham" based on evidence from a process server who observed him operating an electric scooter alone.

Consequently, the court decided against immediate sentencing and instead issued a discretionary bench warrant, requiring Hanemaayer to appear in person to show cause why he should not be sentenced to incarceration for his deliberate and wilful non-compliance with court orders.

The appellants appealed a trial decision finding that they had no interest in certain mining claims under an Option Agreement.

The appellants argued the agreement was an outright sale, while the respondent argued it was an option agreement requiring the appellants to fund development to earn their interest.

The Court of Appeal upheld the trial judge's interpretation, finding that the agreement was an option and that legal title reverted to the respondent because the appellants failed to fulfill their funding obligations.

The moving defendants brought a summary judgment motion seeking dismissal of the plaintiff’s reliance on the Negligence Act and a declaration that their liability was several rather than joint, following a partial settlement (Mary Carter) agreement between the plaintiff and a co-defendant boat operator.

The agreement capped the settling defendant’s liability and required the plaintiff to indemnify and hold that defendant harmless.

The moving defendants argued that the agreement altered the legal relationships among the parties and eliminated joint liability.

The court held that the agreement did not change the substantive liability framework and did not convert potential joint liability into several liability for the non-settling defendants.

The motion was dismissed.

The defendant sought leave to appeal an order dismissing his motion for summary judgment in a personal injury action arising from a motor vehicle accident.

The motions judge had declined to grant partial summary judgment or hold a mini-trial, finding that the defendant's role could not be severed from the continuing narrative of the accident without risking inconsistent findings of fact.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the Hryniak framework and no issue of general importance warranting an appeal.

Following a jury verdict finding the plaintiff 100% liable for injuries arising from a motor vehicle collision, the successful defendants sought substantial costs.

The court applied the reasonableness and proportionality principles governing costs awards under the Rules of Civil Procedure and appellate guidance.

While the defendants were entitled to partial indemnity costs because they succeeded at trial, the court reduced the quantum significantly due to excessive and duplicative claims, unnecessary prolongation of the proceedings by the defendants, and improper inclusion of certain items such as voluntary mediation costs.

Arguments by the plaintiff that costs should be denied due to hardship, alleged disclosure failures, or Rule 49 offer acceptance were rejected.

The court fixed a reduced costs award reflecting fairness and proportionality.

The appellant sued his insurance broker in negligence for failing to offer optional income replacement benefits.

The trial judge found the broker breached its duty of care but dismissed the action because the appellant failed to prove causation, specifically that he would have purchased the coverage if offered.

On appeal, the appellant argued that in cases of insurance broker negligence, the insured does not need to prove causation.

The Court of Appeal rejected this argument, holding that the normal rules of negligence apply and causation remains a question of fact.

Finding no palpable and overriding error in the trial judge's factual conclusions, the appeal was dismissed.

The applicant sought a declaration that his home insurer owed both a duty to defend and indemnity exposure in an underlying Family Law Act action arising from a fatal drug overdose on his property.

Applying the three-step framework from Supreme Court of Canada authority, the court characterized the pleaded claims as genuinely grounded in negligence rather than merely relabelled intentional or criminal wrongdoing.

The court held the negligence claims were non-derivative and potentially within policy coverage for negligent acts.

The insurer was therefore required to provide a defence and coverage for non-excluded negligent claims in the underlying action.

The appellant appealed a trial judgment regarding damages and costs arising from a breach of fiduciary duty.

The Divisional Court dismissed the appeal on damages, finding no error in the trial judge's calculation or refusal to award punitive damages.

However, the court allowed the appeal on costs, finding the trial judge erred in denying costs under Rule 76.13(3) because the action included non-monetary claims and faced a substantial counterclaim, making the ordinary procedure appropriate.

The appellant was awarded trial costs on a partial indemnity basis.