Stephen E. Firestone

Following a judgment awarding the applicant $62,246.68 for a partnership claim, the parties could not agree on the pre-judgment interest rate.

The applicant sought the default rate of 4.8% under s. 127 of the Courts of Justice Act.

The respondents argued for a reduced rate of 1.95% under s. 130, citing lower market rates over the lengthy period, the modest recovery compared to the amount claimed, and the applicant's delay.

The court exercised its discretion under s. 130 and fixed the pre-judgment interest rate at 2.2%.

A third‑party insurer moved for summary judgment dismissing a coverage claim brought by another insurer following a motor vehicle collision.

The dispute concerned whether the driver was an insured under an automobile policy issued to his father and whether the insurer was obligated to indemnify him.

The court considered the Insurance Act, the Ontario Automobile Policy (OAP 1), and evidence relating to ownership of the vehicle and consent to drive it.

The court found the driver was the registered and actual owner of the vehicle and was not operating it with the consent of the named insureds.

Accordingly, he was not an insured under the policy and the insurer had no duty to indemnify.

The plaintiff hospital sued the general contractor (Compass) and subcontractor (Black Creek) for water damage caused during a kitchen renovation.

Black Creek brought a motion under Rule 21 to determine whether Compass's cross-claim against it for contribution and indemnity was barred by the 'covenant to insure' in the general contract.

Black Creek argued the tort immunity principle barred the cross-claim for damage to the entire hospital.

Compass argued the immunity only applied to the 'work' (the kitchen project) and not the adjacent property (the rest of the hospital).

The court held that the covenant to insure and the builder's risk policy only covered the project site (the kitchen), not the entire hospital.

Therefore, Compass's cross-claim against Black Creek for damages outside the kitchen was not barred.

This was a costs endorsement following an application concerning the dissolution of a partnership and the accounting between former partners.

The applicant had succeeded in obtaining recovery for a share of post-dissolution profits under s. 42 of the Partnerships Act and for the fair market value of his one-third interest, but recovered substantially less than originally claimed.

Applying s. 131 of the Courts of Justice Act and Rules 57.01, 49.10, and 49.13 of the Rules of Civil Procedure, the court held that costs should follow the event but reduced the requested amount as disproportionate to the proceeding.

The court found the matter was straightforward and of moderate complexity, identified duplication and excessive hours, allowed the expert-report disbursement, and fixed all-inclusive partial indemnity costs at $48,388.71.

Following dismissal of a summary judgment motion, the court determined costs as between the moving defendants and other defendants in related actions.

The court held that parties against whom specific relief was sought were entitled to costs even though they filed no responding materials, did not cross-examine, and made no oral submissions, because it was reasonable for them to review the materials and attend to protect their clients' interests.

Applying general costs principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1), the court awarded partial indemnity costs in reduced amounts.

Costs were fixed at $4,000 all-inclusive for two responding defendants jointly and $2,000 all-inclusive for another responding defendant.

The Public Guardian and Trustee (PGT), acting as litigation guardian for a plaintiff under a disability, brought a motion under Rule 7.08 for court approval of a proposed $45,000 settlement of claims arising from an alleged police assault.

The plaintiff and his family opposed the settlement, arguing he was not under a disability and should proceed to trial.

Following a court-ordered capacity assessment, the court confirmed the plaintiff lacked capacity to instruct counsel and that the PGT had the authority to settle the action.

However, the court found the evidentiary record insufficient to meaningfully assess the reasonableness of the proposed settlement, particularly regarding general and special damages.

The court directed the PGT to provide further medical documentation and adjourned the approval determination.

The court issued a consent order setting the timetable for the parties to deliver their costs submissions.

The plaintiff, an Ontario corporation, sued the defendant, a Wisconsin corporation, in Ontario for unpaid royalty payments under a licence agreement.

The defendant brought a motion to dismiss or stay the action, arguing the Ontario court lacked jurisdiction simpliciter or was forum non conveniens.

The court found it had jurisdiction because the defendant carried on business in Ontario through its employees and direct sales.

The court declined to stay the action, finding the defendant failed to establish that Wisconsin was clearly the more appropriate forum.

In a medical malpractice action against two oral surgeons, the plaintiffs moved to remove one defendant's counsel based on a conflict arising from the firm's prior joint representation of both defendants.

Although the former client had earlier given a waiver, the court held that a later agreement that counsel would not act adversely to his immediate interests modified that consent.

Applying the duty of loyalty to former and current clients, and emphasizing public confidence in the administration of justice, the court found it would be difficult if not impossible to conduct the trial without a substantial risk of adversity, compromised process, or mistrial.

The motion was granted and counsel was removed, with new counsel to be retained and a new trial date fixed.

Following a jury verdict awarding nil damages, the moving defendants sought a declaration that the plaintiff's claims for non-pecuniary loss and health care expenses were barred by the statutory threshold under the Insurance Act.

The court reviewed the Bill 198 threshold regime, including ss. 267.5(3) and 267.5(5) of the Insurance Act and ss. 4.2 and 4.3 of O. Reg. 461/96, and applied the three-part inquiry from Meyer v. Bright.

The court found the plaintiff had significant pre-existing osteoarthritis and degenerative changes, rejected the contention that the collision caused or accelerated the right knee and right shoulder surgeries, and held that any impairments did not substantially interfere with most usual activities of daily living.

The threshold motion was granted.

In this procedural endorsement in a civil action, the moving parties were directed to advise the court on unresolved trial-management matters.

The court sought clarification on the applicable governing law for liability, limitation period, and damages, including whether Ontario or Quebec law applied, and how any Quebec law would be introduced into evidence.

The court also required the parties to advise whether a limitations-based dismissal motion would be renewed and whether any other motions were anticipated.

Updated witness lists and time estimates for examinations were also ordered.

This was a costs decision following a summary judgment motion.

The parties agreed that the responding party would pay $18,000 all-inclusive on a partial indemnity basis, but disputed whether that amount should be set off against an outstanding prior costs award from a separate motion.

The court declined to order a set-off because the earlier award related to a different motion and there could be a dispute over interest on that earlier award.

The agreed costs award remained payable without set-off.

The moving parties sought summary judgment dismissing a solicitor's negligence and breach of retainer claim arising from a law firm breakup and the transfer of approximately 225 client files.

The responding party alleged the retainer required counsel to obtain charging orders against transferred files, but the court found no express or implied term to that effect in the written retainer or subsequent instructions.

Applying the summary judgment framework under Rule 20 and Hryniak, the court held the evidentiary record permitted a fair and proportionate adjudication without trial.

The motion was granted and the action dismissed.

The defendant builder moved for summary judgment arguing that a full and final release executed by the condominium corporation in settlement of a parallel s. 23 Condominium Act action barred the plaintiff unit owner's separate contractual action concerning deficiencies unique to its units and immediately related common elements.

The court held that the condominium corporation had no authority under s. 23 to settle or release the plaintiff's distinct individual claim for specific performance and related relief, and interpreted the release narrowly so it did not extend to that action.

The court also held that res judicata or abuse of process barred the defendant from relying on a release defence that could have been raised before the Court of Appeal when the scope of the plaintiff's right to maintain the action was litigated.

Because the parallel proceeding had settled and the release did not bar the claim, the partial stay would cause injustice and was lifted.

This was a procedural endorsement in a civil action concerning a motion for court approval of a proposed settlement on behalf of a party under litigation guardianship.

The court scheduled the return of the motion for March 9, 2015.

The court also ordered that correspondence from the family, dated January 26, 2015 with enclosures, be provided to counsel for the litigation guardian within 10 days.

Following a jury verdict in a motor vehicle tort action, the court determined the post-verdict deductibility of collateral benefits from the plaintiff's past income loss award.

Applying ss. 267.5(1) and 267.8(1) of the Insurance Act, the court first reduced the gross past income loss award to 80 per cent of net income loss, then deducted all income replacement benefits received during the same relevant period.

The court rejected a weekly or speculative parsing of the jury's lump-sum award and held that the total statutory accident benefits received for that period had to be deducted from the total amount to which the plaintiff was entitled.

As the benefits received exceeded the net recoverable amount, the plaintiff's entitlement for past income loss was reduced to nil.

Following a jury award for general damages and past income loss arising from a motor vehicle collision, the defendants brought a threshold motion asserting that the plaintiff's injuries did not meet the statutory exception to immunity for non-pecuniary damages.

The court reviewed s. 267.5(5) of the Insurance Act and O. Reg. 461/96, including the requirement that the impairment be permanent, important, and serious.

Although the court accepted that the plaintiff's back pain was permanent and affected an important function given his physically demanding work, it found no substantial interference with his regular employment or most activities of daily living.

The threshold motion was granted and, together with the collateral benefits ruling, the action was dismissed.

The applicant and respondents operated a chiropractic and physiotherapy clinic as a partnership.

Following the dissolution of the partnership, the respondents continued to operate out of the same premises using partnership assets.

The applicant sought a share of the post-dissolution profits under s. 42 of the Partnerships Act and a determination of the fair market value of his one-third share of the partnership.

The court awarded the applicant a portion of the post-dissolution profits based on the percentage attributable to the use of partnership assets, and determined the fair market value of his share using a capitalized cash flow approach with a minority discount, resulting in a total award of $62,246.68.

Following a jury trial in a motor vehicle negligence action where liability was admitted but the jury found the accident caused no injuries, the defendant sought costs after the plaintiff’s action was dismissed.

The court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, as well as the effect of Rule 49 offers to settle.

The court held that Rule 49.10 did not apply because the plaintiff obtained no judgment.

Applying the principle that costs generally follow the event, the court concluded there was no misconduct justifying departure from that principle, though the plaintiff’s financial circumstances were considered in assessing quantum.

The defendant was awarded partial indemnity costs and reduced disbursements in an amount the court considered fair and reasonable.

The defendants moved for summary judgment dismissing a personal injury claim arising from a zip-line accident, relying on a participant agreement containing a waiver of liability.

The plaintiff argued the waiver was invalid or unenforceable because she did not understand she was signing a release, the waiver language was ambiguous, and the circumstances of signing were misleading.

The court held that the evidentiary record was incomplete regarding the conditions under which the agreement was presented and signed, including potential misrepresentations and the plaintiff’s understanding of the document.

Given the document’s structure, typographical errors, and disputed circumstances, the court concluded that credibility findings and a full evidentiary record were required.

Summary judgment was therefore inappropriate and the enforceability of the waiver must be determined at trial.