Sam R. Sasso

The appellant, 908593 Ontario Limited (Eagle Travel), by its receiver, appealed the dismissal of its claim for coverage under a credit risk insurance policy issued by the respondent, Atradius.

Eagle Travel sought indemnity for over $4 million in outstanding accounts receivable from "Discretionary Credit Limit Buyers." The motion judge found, and the Court of Appeal affirmed, that the policy contained a clear and unambiguous aggregate liability limit of $100,000 per insurance year for such buyers.

The Court rejected arguments that the policy was a standard form contract (thus requiring a correctness standard of review) and that the appellant was unaware of the limit, emphasizing the presumption of knowledge for signed contracts and the commercial reasonableness of the policy's interpretation.

The appeal was dismissed with costs awarded to the respondent.

This endorsement arises from a case conference in a complex action involving TD Bank and numerous insurance underwriters.

The court addressed the management of three pending discovery motions (defendants' refusals, plaintiff's refusals, and defendants' motion for a second discovery representative) and trial management issues.

The court declined the plaintiff's request to expand their refusals motion, permitted the plaintiff to withdraw their existing refusals motion without prejudice, and vacated the scheduled trial date of September 13, 2021, as the action was not ready.

The court provided specific case management directions for completing discoveries, updating motion materials, and preparing for a future trial date.

In an insurance coverage action, the parties brought three motions regarding discovery refusals and the examination of a second discovery representative.

The judge determined that the motions were within the jurisdiction of a Master and, pursuant to the Toronto Region Consolidated Practice Direction, transferred the motions to a Master for determination.

The judge also ordered a case conference to address procedural deficiencies and ensure the orderly development of the motions for hearing.

The defendants moved for summary judgment on a limitation issue, arguing the plaintiffs' action was statute-barred due to discoverability.

The plaintiffs alleged breach of contract, fiduciary duty, misappropriation, and unjust enrichment related to a cannabis business venture.

The court found that the discoverability issues were contentious and complex, with significant factual disputes overlapping with the merits of the claim.

The record did not allow for the necessary findings of fact with the certainty required for summary judgment.

The motion was dismissed, and costs were fixed in the cause.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The plaintiff bank brought a motion for partial summary judgment seeking a declaration that losses it sustained due to an employee's participation in a Ponzi scheme constituted a 'direct financial loss' under its fidelity bond.

The bank had settled multiple third-party claims after victims transferred funds to the bank based on fraudulent representations by the bank's employee.

The court held that the bank received the funds subject to a constructive trust, and suffered a direct financial loss when those funds were credited to unrestricted accounts controlled by the fraudster.

The court found this narrow issue of policy interpretation appropriate for partial summary judgment and granted the declaration.

The appellants (defendants) appealed a Master's decision that set aside a registrar's order dismissing the action for delay.

The Superior Court found that the Master erred in reversing the onus of proof regarding prejudice, which lies with the plaintiff to demonstrate a lack thereof.

The Master also failed to give adequate weight to the principle of finality.

The court emphasized that the plaintiff failed to provide a satisfactory explanation for significant delays and did not demonstrate a lack of prejudice to the defendants.

The appeal was allowed, and the registrar's dismissal order was restored.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

The plaintiff brought a motion to set aside a registrar's order dismissing his action for delay.

The court applied the four Reid factors: explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the defendants.

While the plaintiff failed to satisfy the first three factors, the court found no actual prejudice to the police defendants.

Emphasizing that prejudice is the key factor and that a party should not be unduly prejudiced by their lawyer's conduct, the motion was granted.

The dismissal order was set aside, and a strict timetable was imposed for the action's progression.

The defendants brought a motion to compel the plaintiff to produce three categories of documents in its affidavit of documents.

The plaintiff argued that it was prohibited from producing these documents by United States regulatory and privacy laws, as well as US court protective orders.

The court dismissed the motion, finding that the foreign laws and orders were entitled to comity.

The court held that the plaintiff should not be compelled to violate foreign laws and directed the defendants to seek production or consent directly from the relevant US authorities or courts, with the plaintiff's reasonable cooperation.

The plaintiff, a senior investment banker, alleged he was constructively dismissed when his employer failed to promote him to a promised Team Leader position by a fixed date.

The court found that the employer had not breached the employment contract, as it was taking reasonable steps to implement the promotion within a reasonable timeframe and had paid the plaintiff significant increased compensation.

The court concluded the plaintiff voluntarily resigned to join a competitor start-up.

The constructive dismissal claim was dismissed, but the plaintiff was awarded minor amounts for unpaid cash incentive pay and a declared dividend.

The appellants, former directors and officers, sought a declaration that their insurer was obligated to pay 90 or 100 per cent of their defence costs for civil and regulatory proceedings arising from conduct in 2001 and 2003.

The insurer had been paying 50 per cent, arguing the policy only covered the 2001 conduct.

The application judge dismissed the application.

On appeal, the Court of Appeal found the policy's allocation provisions ambiguous when read with the definition of 'Loss'.

Because the factual record was insufficient to resolve the ambiguity or determine if the doctrine of contra proferentem applied, the Court allowed the appeal and directed a new hearing on the allocation issue.

The plaintiff brought a motion for leave to appeal an order dismissing its appeal of a Master's decision.

The Master had allowed the defendants to continue a refusals motion despite having served a Trial Record, finding that leave under Rule 48.04(1) was either unnecessary or should be granted.

The Divisional Court dismissed the motion for leave to appeal, holding that the Master's exercise of discretion to grant leave was unassailable and that the proposed appeal did not meet the threshold test under Rule 62.02(4).

The plaintiff brought a motion for leave to appeal an order dismissing its appeal of a Master's decision.

The Master had ruled that the defendants did not require leave under Rule 48.04(1) to continue a refusals motion after serving a Trial Record, or alternatively, that leave should be granted.

The Divisional Court found no reason to doubt the correctness of the order and held that the Master's discretion in granting leave was unassailable.

The motion for leave to appeal was dismissed.

The moving party defendants sought leave to appeal a motions judge's refusal to strike out the plaintiff's claims for 'knowing assistance of breach of fiduciary duty' and 'assisting or facilitating breach of contract' in a proposed class action arising from investments in a hedge fund.

The Divisional Court granted leave to appeal, finding that there were conflicting decisions regarding the existence of the tort of assisting breach of contract, and good reason to doubt the correctness of the decision regarding knowing assistance of breach of fiduciary duty given the plaintiff was not a client of the defendants.

The issues were deemed to be of general importance to the investment industry.