Shannon M. Gaudet

Costs ruling following a jury trial in which the plaintiff succeeded on a malicious prosecution claim but failed on wrongful arrest and excessive force claims.

The jury awarded $63,900 in damages, which exceeded the plaintiff's Rule 49 offer to settle.

The court applied a 20% reduction to counsel fees to reflect divided success, deducted $20,000 for the use of two senior counsel, and disallowed expert disbursements of $19,700 related to the unsuccessful claims.

The court rejected a distributive costs approach and held that the plaintiff was entitled to substantial indemnity costs from the date of the Rule 49 offer, awarding total costs of $180,220.70.

The decision addresses a dispute over a jury verdict in a civil action brought by Andrew Sanayhie against the Durham Regional Police Services Board and two officers.

The plaintiff alleged wrongful arrest, excessive force, and malicious prosecution.

The jury's initial verdict was inconsistent, awarding damages for malicious prosecution despite finding no malice.

The court sent the jury back for clarification, and the second verdict found malice and again awarded damages.

The court held that it was appropriate to seek clarification from the jury before discharge, dismissed the defendants’ motion for judgment in their favour, and entered judgment for the plaintiff on malicious prosecution and legal expenses.

The appellant reinsurer appealed a trial judgment ordering it to indemnify the respondent retrocedant for its share of a $140 million settlement reached by the lead insurer regarding a business interruption claim.

The appellant argued it was not bound by the 'follow settlements' clause in the retrocession agreement because it had not agreed to the settlement.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant was bound by the single proviso follow settlements clause, that the settlement arguably fell within coverage as a matter of law, and that the lead insurer took proper and businesslike steps in reaching the settlement.

The court considered whether a key police witness, Officer Jonathan Hood, should be permitted to testify virtually due to psychological health concerns.

The plaintiff objected, arguing in-person testimony was necessary for the jury to assess credibility and demeanor.

The court reviewed the relevant Rules of Civil Procedure and expert evidence from Dr. Christine Hansen, ultimately concluding that the balance of convenience favoured allowing virtual testimony in light of Officer Hood’s diagnosed PTSD and related conditions.

Following a successful trial where the plaintiff was awarded approximately $8.9 million, the plaintiff sought costs of $3.49 million based on a Rule 49.10 offer.

The defendant argued the offer was not a true compromise and challenged the proportionality of costs and specific disbursements.

The court found the Rule 49.10 offer was a genuine compromise, entitling the plaintiff to partial indemnity costs to the offer date and substantial indemnity costs thereafter.

The court allowed disbursements for fact witness preparation and e-discovery, but disallowed fees for an expert who did not testify.

Costs were fixed at $2.8 million.

The plaintiff, Wiener Städtische Versicherung AG (VIG), a reinsurer, sought to recover funds from the defendant, Infrassure Ltd., a retrocessionaire, under a retrocession agreement.

VIG had paid its portion of a $140 million settlement to Zurich Insurance Company Ltd. (Zurich) for a business interruption claim by Vale (Canada) Limited.

Infrassure denied liability, arguing it was not contractually bound to follow the settlement and that Zurich failed to take proper and businesslike steps.

The court found that Infrassure was contractually bound by the "follow the settlements" clause and that Zurich had taken proper and businesslike steps in reaching the settlement.

Judgment was granted in favour of VIG for the settlement amount and loss adjustment costs, with the court denying VIG's claim for punitive damages.

The defendant in a reinsurance dispute brought a motion to amend its Statement of Defence to particularize policy exclusions it relied upon to dispute the quantum of a business interruption claim.

The plaintiff opposed, arguing the amendments amounted to the withdrawal of an admission under Rule 51.05 of the Rules of Civil Procedure and would cause prejudice.

The court granted the motion, finding that the defendant had always disputed quantum, the amendments merely clarified how quantum should be calculated, and no deliberate concession had been made that would trigger Rule 51.05.

The plaintiff brought a motion for summary judgment seeking a declaration that its insurers had a duty to defend and indemnify it against a counterclaim in ongoing Wisconsin litigation.

The court found that the summary judgment procedure was inappropriate for duty to defend applications but proceeded to determine the issue based on the pleadings and the insurance policy.

The court concluded that the insurers had no duty to defend because the Wisconsin counterclaim sought only declaratory relief and not compensatory damages, which was a requirement for coverage under the errors and omissions policy.

The plaintiff's motion was dismissed, and partial summary judgment was granted to the defendants dismissing the duty to defend claim.

This is an appeal of an arbitration decision concerning a priority dispute between two insurance companies, Intact and Gore Mutual, regarding statutory accident benefits for a claimant injured in an Alberta automobile accident.

The claimant, an Alberta resident, submitted an Ontario claim.

The arbitrator found Gore Mutual in greater priority under both Ontario and Alberta law and ordered reimbursement to Intact.

The Superior Court allowed the appeal, finding the arbitrator's decision on Ontario law unreasonable because the claimant was not an "insured person" under Gore Mutual's Ontario policy.

The court also held that the arbitrator exceeded jurisdiction by determining priority under Alberta law and ordering reimbursement based on it, as the arbitration agreement was limited to Ontario legislation.

The appellants, owners of property in Wychwood Park, Toronto, challenged their obligation to pay annual levies under an 1891 trust deed governing common property in the residential community.

The appellants argued that the positive covenant to pay levies does not run with freehold land under Ontario law.

The trial judge dismissed the trustees' claim, accepting the positive covenants argument.

The appeal judge reversed, holding that both the benefit and burden exception and the conditional grant exception to the positive covenants rule apply under Ontario law.

The Court of Appeal allowed the appeal, holding that the appeal judge erred by failing to follow binding precedent in Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123, which established that neither exception forms part of Ontario law.

The court found that the grants of benefit in the trust deed were not framed as conditional upon payment of the levy, and therefore the conditional grant exception did not apply.

The appellants, owners of property within Wychwood Park, a residential community in Toronto, challenged their obligation to pay annual levies for maintenance and taxes of common property pursuant to a 1891 trust deed.

The respondent trustees sought to recover unpaid levies from 2010-2013.

The appellants invoked the common law rule that positive covenants do not run with freehold land.

The Court of Appeal for Ontario held that the positive covenant obligation was not enforceable against the appellants, as neither the "benefits and burdens" exception nor the "conditional grant" exception to the positive covenant rule applied under Ontario law.

The court affirmed that the Amberwood precedent, which rejected adoption of these exceptions in Ontario, remained binding.

The appellants, trustees of Wychwood Park, appealed a Small Claims Court decision dismissing their claim for unpaid maintenance levies against the respondents.

The trial judge had ruled that the obligation to pay was a positive covenant that did not run with the land.

The Divisional Court allowed the appeal, finding that the trial judge erred by failing to apply the conditional grant and benefit and burden exceptions to the rule against positive covenants running with the land.

The court held that the respondents, who had actual notice of the Trust Deed and received the benefits of the private park, were bound by the positive obligation to pay the levies.

The plaintiff brought an action against 39 defendants, including lawyers, police officers, and private investigators, seeking $20 million in damages for various torts including abuse of process, negligent investigation, and conspiracy.

The defendants moved to strike the claim.

The court found the action was a collateral attack on previous court orders finding the plaintiff in contempt of court.

The court dismissed the action in its entirety as frivolous, vexatious, and an abuse of process, and alternatively struck the claim for disclosing no reasonable cause of action.

Substantial costs were awarded to the defendants.

The applicant sought interim attendant care and housekeeping benefits following a motor vehicle accident.

The insurer opposed the motion, alleging the applicant's wife did not suffer an economic loss and raising late allegations of misrepresentation based on undisclosed surveillance evidence.

The arbitrator found the applicant established a prima facie case for interim benefits and refused to consider the ambush surveillance evidence.

However, because the applicant failed to attend a requested examination under oath, the arbitrator held that benefits were suspended under the Schedule.

The motion for interim benefits was denied and suspended pending compliance with the examination under oath.

The plaintiffs brought a negligence action against a municipality arising from a single‑vehicle collision on a rural road curve that caused catastrophic injuries to a young driver.

The court considered whether the municipality breached its duty under s. 44 of the Municipal Act to keep the roadway in a reasonable state of repair, focusing primarily on inadequate warning signage and the absence of an advisory speed sign for a sharp curve.

Expert evidence established that proper signage, including a 40 km/h advisory speed tab and additional warning devices required by the Ontario Traffic Manual, should have been installed.

The municipality had not conducted any evaluation of the signage following amalgamation and allowed substandard signage to remain in place for years.

The court found the municipality liable for failing to maintain the road in a reasonable state of repair, but also held the driver contributorily negligent for failing to sufficiently reduce speed in snowy conditions.