Stephen E. Firestone

The third party insurer brought a motion for summary judgment seeking dismissal of a third party claim brought by another insurer in a motor vehicle accident action.

The dispute concerned whether the moving insurer had an obligation to indemnify the driver under a policy issued to his father where the vehicle had been transferred into the driver’s name prior to the collision.

The responding insurer argued the policy applied either through statutory absolute liability provisions or because the driver was an insured operating the vehicle with the named insured’s consent.

The court held that material factual disputes remained regarding common law ownership of the vehicle and whether the driver had express or implied consent to operate it.

Because these issues required additional evidence, particularly from the named insured, summary judgment was not appropriate.

The plaintiff sought damages for multiple workplace assaults committed by the defendants, who operated the meat market where the plaintiff worked.

The court accepted the plaintiff’s evidence and corroborating witness testimony that the defendants carried out three separate attacks, including a beating and stabbing, causing physical injuries and post‑traumatic stress disorder.

The defendants admitted liability for assault but argued provocation to mitigate damages.

The court rejected the provocation defence, finding no credible evidence that the plaintiff initiated the violence, and held two defendants jointly liable as joint tortfeasors for the injuries arising from the coordinated attacks.

The court awarded general damages, past income loss, and exemplary damages.

Following a motion in which the defendants successfully obtained a stay of the civil action pending determination by the Ontario Labour Relations Board, the court addressed the issue of costs.

The moving parties sought substantial or partial indemnity costs, arguing they were entirely successful and had proceeded on an expedited timeline at the insistence of the responding parties.

The responding parties argued the amounts claimed exceeded reasonable expectations and that substantial indemnity costs were inappropriate because the motion concerned jurisdiction and did not determine substantive rights.

Applying the principles under s.131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that successful parties are generally entitled to costs but that the amount must be fair and reasonable.

Partial indemnity costs were awarded to each group of moving parties.

A rental vehicle owner and its insurer brought a Rule 21 motion seeking a determination of priority of insurance under s. 277(1.1) of the Insurance Act following a motor vehicle accident involving a rented vehicle.

The plaintiffs sued the driver and the rental company but did not name the renter as a defendant, prompting the owner to commence a third‑party claim against the renter for contribution and indemnity.

The renter’s insurer argued that its policy was not “available” because the plaintiffs had not sued the renter directly.

The court held that a liability claim against the renter through a third‑party proceeding is sufficient to trigger the statutory priority rules.

The renter’s policy was therefore required to respond first, consistent with the legislative intent that the renter’s insurance be primary and the rental company’s insurer last in priority.

Corrigendum to a prior costs endorsement correcting arithmetic errors in the calculation of a costs award in a civil action.

The court adjusted the surveillance expense total and corrected the amount previously recorded in the endorsement.

The court also deducted a previously satisfied $1,000 costs order made by a Master.

As a result of these corrections, the supplementary costs endorsement amount was reduced.

The insurer brought a motion for partial summary judgment seeking to limit the plaintiff’s recovery to $200,000 on the basis that the plaintiff failed to provide the corroborative “other material evidence” required under the OPCF 44R Family Protection Coverage Endorsement for unidentified motorist claims.

The accident involved a motorcyclist who alleged he was cut off by an unidentified vehicle without physical contact.

The court considered whether medical evidence describing the mechanism of injury could constitute “physical evidence indicating the involvement of an unidentified automobile” under ss. 1.5(C) and 1.5(D)(ii) of the endorsement.

The court held that corroborative evidence need not be limited to skid marks or scene evidence and may include medical evidence extrinsic to the plaintiff’s self-report.

Because the consultation report describing an axial-load leg injury was consistent with the plaintiff’s account of evasive braking, a genuine issue requiring trial existed.

Following dismissal of a Rule 21 motion brought by one defendant seeking to bar claims relating to expulsion from union membership, the court addressed costs.

The plaintiffs had successfully resisted the motion, which sought to preclude the action for failure to exhaust internal union appeals or for lack of jurisdiction.

Applying the discretionary costs framework under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality, complexity, and the results achieved.

Relying on appellate guidance regarding fair and reasonable costs awards, the court held that the successful plaintiffs were entitled to costs.

Partial indemnity costs of $4,990 were ordered payable by the moving defendant only.

The defendant moved for leave to amend its statement of defence to plead a limitation period defence and sought summary judgment dismissing the plaintiff’s claim as statute-barred.

The court granted leave to amend under Rule 26.01 of the Rules of Civil Procedure, finding no prejudice that could not be compensated by costs and that the proposed amendment raised a triable issue.

However, the court dismissed the summary judgment motion, holding that the discoverability issue under the Limitations Act, 2002 involved complex factual questions regarding nine different products purchased at different times and representations made by the defendant.

The evidentiary record did not clearly establish when the plaintiff discovered that its losses were caused by the defendant.

The limitation issue was therefore held to require determination at trial.

Supplementary costs endorsement correcting disbursement and total costs figures in a prior costs decision.

The defendant advised that an expert invoice previously referenced should be replaced with a lower amount.

The court amended the disbursement total and the overall costs award accordingly to reflect the corrected invoice amount.

The decision adjusts the numerical totals in the earlier July 15, 2014 costs endorsement without altering the underlying entitlement to costs.

Following an earlier hearing converting an application concerning distraint of goods into an action to be tried with a related proceeding, the court addressed the issue of costs.

The respondent had successfully argued that the application should proceed as an action together with a companion action involving the same transactions and parties.

The court considered the discretion to award costs under s. 131(1) of the Courts of Justice Act and the factors in Rule 57.01.

While the applicant’s opposition to conversion was not unreasonable and there was no bad faith, the respondent was partially successful on the procedural issue.

The court awarded modest costs for the hearing while reserving further costs to be determined following the final determination on the merits.

Estate litigation concerning the validity of a memorandum of agreement under which a mother agreed to transfer her home to one daughter for $100,000 in exchange for continued caregiving.

The applicant alleged lack of capacity, language barriers, undue influence, and contractual uncertainty, and argued the agreement died with the deceased.

The court held the memorandum of agreement was a valid and enforceable contract for the sale of the property and survived the deceased’s death.

Evidence from the drafting solicitor and independent Macedonian-speaking lawyer rebutted the presumption of undue influence and demonstrated the deceased’s clear intention and capacity.

A subsequent handwritten note was found merely to reaffirm the agreement and not constitute an independent inter vivos gift.

Unionized masonry contractors commenced a civil action alleging that employer associations and construction unions conspired to prevent them from using independent operator payment arrangements with bricklayers through amendments to provincial collective agreements.

The plaintiffs sought declarations that the collective agreements and memorandum of agreement were unlawful, injunctive relief, and damages for economic torts.

The defendants moved to dismiss or stay the action on the basis that the dispute fell within the exclusive jurisdiction of the Ontario Labour Relations Board.

Applying the framework from Weber v. Ontario Hydro, the court held that the essential character of the dispute concerned labour relations issues including the validity and scope of collective agreements and the relationship between employers and unionized workers.

Because those matters fall within the OLRB’s exclusive jurisdiction under the Labour Relations Act, the court stayed the action and declined to consider the requested injunctive relief.

Following an undefended trial in a negligence action arising from a slip and fall on a residential driveway, the court addressed the issue of costs after releasing its reasons for judgment.

The successful plaintiff sought recovery of legal fees and disbursements.

Applying s. 131(1) of the Courts of Justice Act and the factors in Rule 57.01(1) of the Rules of Civil Procedure, the court noted that a successful party is generally entitled to costs absent compelling reasons to deny them.

The court characterized the matter as relatively straightforward and allowed partial indemnity fees of $15,000 inclusive of HST and disbursements of $27,512.32 inclusive of HST.

The defendant Attorney General of Ontario brought a motion to strike or dismiss the plaintiff’s civil claim arising from a criminal prosecution that ended in acquittal.

The court held that the action was a nullity because the plaintiff failed to provide the mandatory 60‑day notice required before commencing proceedings against the Crown under the Proceedings Against the Crown Act and the Ministry of the Attorney General Act.

The court further found that any claim for malicious prosecution was statute‑barred under the Limitations Act, as the action was commenced more than two years after the acquittal.

Additional claims for misfeasance in public office and conspiracy were struck for lack of material particulars and as frivolous and vexatious.

Summary judgment was granted and the action was dismissed.

The defendants brought a motion under the Rules of Civil Procedure to strike or dismiss the plaintiff’s amended statement of claim arising from employment-related disputes with hospitals and subsequent complaints before several administrative tribunals.

The court held that the Ministry of Health, the Ontario Human Rights Commission, the Ontario Labour Relations Board, the Workplace Safety Insurance Appeals Tribunal, and the Health Professions Appeal and Review Board were not suable entities because their enabling statutes did not confer corporate status or capacity to be sued.

The claim against those bodies was therefore dismissed.

The court further held that the pleadings against the Crown disclosed no reasonable cause of action, contained vague and unsupported allegations of corruption and Charter breaches, and failed to plead material facts necessary to support a recognized cause of action.

The claim against the Crown was struck with leave to amend.

Following two attendances related to applications concerning a limitation issue under the Real Property Limitations Act, the court determined that the matters would require viva voce evidence and should be heard with a related action.

The parties were invited to make written submissions on costs for the attendances.

Applying the discretionary principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered the conduct of the parties and the proportionality principle.

As the applications did not proceed on their merits and all parties contributed to the adjournments, the court concluded that no party should recover costs.

Each party was ordered to bear its own costs for the two appearances.

Following dismissal of a motion seeking to remove the plaintiffs’ solicitors of record, the court addressed costs.

Applying the discretion under s.131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality and the surrounding circumstances.

Although the plaintiffs were the successful party, the motion had been dismissed without prejudice and the defendant’s timing argument was not improper or vexatious.

Relying on the fairness principles articulated in appellate authority, the court fixed costs at a reasonable amount rather than the full costs incurred.

The defendant police service brought a motion to strike the statement of claim under multiple provisions of the Rules of Civil Procedure, alleging the pleading disclosed no reasonable cause of action and was frivolous, vexatious, and non-compliant with pleading rules.

The self‑represented plaintiff alleged harassment, assault, false arrest, and discrimination but failed to plead dates of loss, material facts, or a clear cause of action.

The court held that while the allegations did not plainly disclose no cause of action, the pleading lacked the material facts required by rule 25.06 and made it impossible for the defendant to respond.

The statement of claim was therefore struck for deficient pleading but the plaintiff was granted leave to amend within 30 days.

The defendants brought a motion to strike the statement of claim under Rules 21.01 and 25 of the Rules of Civil Procedure.

The self-represented plaintiff’s pleading alleged harassment, discrimination, false accusations, and other misconduct by police but did not specify dates, incidents, or material facts capable of supporting a recognized cause of action.

The court held that the pleading failed to disclose any reasonable cause of action and did not comply with the basic rules of pleading requiring material facts and a clear statement of relief.

The court further found the claim frivolous and vexatious because it contained only vague allegations without factual foundation.

The statement of claim was struck without leave to amend and the action dismissed.

The defendants brought a motion under rules 21.01 and 25.06 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim.

The plaintiff, self‑represented, alleged disturbance, harassment, discrimination, and false ticket accusations by police but pleaded no dates, specific incidents, or material facts capable of supporting a recognized cause of action.

The court held that the pleading failed to meet the minimum requirements for a cause of action and was frivolous and vexatious.

Applying the “plain and obvious” test for rule 21.01(1)(b) motions, the court concluded that the claim disclosed no reasonable cause of action and failed to comply with pleading requirements.

The statement of claim was struck without leave to amend and the action dismissed.