Court File and Parties

COURT FILE NO.: CV-16-545352

DATE: 20210714

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CITY OF TORONTO Applicant

AND:

BEVCON CONSTRUCTION & PAVING MANAGEMENT Respondent

BEFORE: Mr. Justice Chalmers

COUNSEL: G. Wray, for the Applicant

A. King, for the Respondent

HEARD: May 31, 2021

ENDORSEMENT

[1] This is a duty to defend Application brought by the City of Toronto. Counsel for the City requested this case conference to obtain the assistance of the court to schedule a date for a two-hour hearing and to establish a timetable.

[2] The Plaintiff brought an action against the City of Toronto arising out of a slip and fall accident (CV-16-545352). The City claimed over against its maintenance contractor, Bevcon Construction & Paving Management and the contractor’s insurer, Hanover Insurance. The City takes the position that the contractor and insurer are obligated to defend the action brought by the Plaintiff.

[3] Counsel for the Plaintiff took the position that the issue should be determined on a motion brought in the existing action, and not by way of a separate application. It is my view that the duty to defend issue may be determined by way of motion or application. Counsel for the City agreed to proceed by way of motion.

[4] Counsel for the Plaintiff also argued that it was too late for the City to proceed with its motion. He recently received the Trial Certification Form and expects that the pre-trial and trial will be scheduled shortly. He is concerned that the motion to determine the duty to defend may result in an adjournment or delay in his action. Counsel for the Plaintiff advised that he has a busy trial schedule until November 2021. It is likely the earliest this matter will be tried is in the spring of 2022. I am satisfied that there is sufficient time for the motion to be heard without jeopardizing the pre-trial or trial dates.

[5] The motion to determine the duty on Bevcon and Hanover to defend the City in the action brought by the Plaintiff is scheduled for November 12, 2021 for a half-day. I establish the following timetable:

a) Moving Party’s record to be delivered by June 30, 2021;

b) Responding Record to be delivered by July 30, 2021;

c) Cross examinations if any to be completed by August 31, 2021;

d) Moving Party’s factum to be delivered by September 30, 2021;

e) Responding Party’s factum to be delivered by October 29. 2021;

f) Reply factum, if any to be delivered by November 5, 2021.

DATE: July 14, 2021