Steven Stieber

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The appellants, two municipalities, appealed a trial judgment apportioning them 2/3 liability for a motor vehicle accident that rendered two young women quadriplegic.

The trial judge found the unlit, unmarked rural road was in a state of non-repair due to a dangerous 'accident hill' that blinded drivers.

The respondents cross-appealed, arguing the driver's 1/3 liability should be reduced to 10 percent.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge's factual conclusions were amply supported by the evidence and his apportionment of fault was entitled to substantial deference.

Insurers disputed responsibility for satisfying a tort judgment arising from a fatal apartment fire.

One insurer had paid the balance of the judgment after the other insurer exhausted its primary policy limits and refused to contribute further pending resolution of a priority dispute.

The court held that liability of the building owner and property manager—treated as a single defendant in the underlying tort action—should be apportioned equally between them for indemnity purposes.

Applying principles analogous to Aetna Insurance Co. v. Canadian Surety Co. and restitutionary doctrines, the court concluded the paying insurer had overpaid and was entitled to reimbursement.

Judgment was granted requiring the responding insurer to reimburse the excess amount.

The appellants, plaintiffs in a certified class action alleging abuse at a residential school, appealed a motion judge's order granting the respondents leave to issue third-party claims for contribution and indemnity against the students' parents and guardians.

The appellants argued that the third-party claims were legally untenable because they had limited their claims to the several liability of the respondents.

The Divisional Court allowed the appeal, applying the Court of Appeal's decision in Taylor v. Canada, holding that where a plaintiff limits their negligence claim to damages caused solely by the defendant, there is no right to claim contribution and indemnity.

Furthermore, liability for breach of fiduciary duty is not subject to apportionment.

The order permitting the third-party claims was set aside.

The representative plaintiffs in a class action against a private school sought leave to appeal a motions judge's decision permitting the defendants to bring third party claims against the parents of the students, who were members of the certified class.

The plaintiffs argued that because they intended to limit their claims to the several liability of the defendants, third party claims for contribution and indemnity were legally barred, relying on the Court of Appeal's decision in Taylor.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision and noting the issue's importance to access to justice.

Following the outcome of the appeals, the court awarded costs to the respondent in the amount of $43,000, inclusive of GST and disbursements.

The appellant hospital appealed a trial judgment awarding the respondent doctor $3,000,000 in damages for the bad faith revocation of his hospital privileges.

The doctor cross-appealed the damage assessment, arguing it should have been higher.

The Court of Appeal dismissed both the appeal and the cross-appeal.

The Court found ample evidence to support the trial judge's finding that the hospital acted in bad faith and for an oblique motive when it summarily revoked the doctor's privileges.

On damages, the Court held that while the doctor failed to produce readily available evidence of his income loss, the trial judge was entitled to assess damages based on the proven magnitude of the loss, and was justified in reducing the claim by approximately half.

The respondent condominium corporation suffered flooding due to a failed standpipe system and sought $600,000 for its replacement under an all-risk insurance policy issued by the appellant.

The application judge found the loss was covered, ruling that a water hammer event caused the damage and that section 99(3) of the Condominium Act nullified the policy's exclusion for faulty design.

The Court of Appeal allowed the insurer's appeal, holding that the standpipe system was improperly designed before the insurer came on risk, making the failure a non-fortuitous event.

The court further held that the loss fell squarely within the policy's exclusion clause and that section 99(3) did not apply because the damage was not resultant damage.

The landlord sued the tenant in negligence after a fire started in the tenant's unit, causing property damage.

The parties brought a motion by special case to determine if the landlord's subrogated insurer was precluded from maintaining the claim.

The motion judge allowed the claim to proceed.

On appeal, the Court of Appeal reversed, holding that because the Offer to Lease required the tenant to contribute to the cost of insurance, the risk of fire loss passed to the landlord, precluding the subrogated claim.

The appellant insurer appealed a decision finding it had a duty to defend the respondent.

The Court of Appeal dismissed the appeal, holding that the statement of claim did not allege an intent to injure, meaning the intentional act exclusion clause did not apply.

Furthermore, the respondent met the definition of an employee under the policy as he was engaged in cleaning the premises on behalf of the insured at the time of the incident.

The insured, a pizza delivery company, was sued after a pedestrian was struck by one of its delivery vehicles.

The plaintiff alleged the insured's '30 minutes or free' delivery policy and failure to screen drivers constituted negligent business practices.

The insurer denied a duty to defend, relying on an automobile exclusion clause in the commercial general liability policy.

The application judge found the business practice claims were independent of the automobile use and ordered the insurer to defend.

The Court of Appeal allowed the insurer's appeal, holding that the non-automobile claims were derivative of the negligent operation of a motor vehicle and therefore caught by the exclusion clause.

The appellant town appealed a motion judge's decision that claims made against it in a construction dispute were excluded from its insurance coverage.

The underlying action alleged misrepresentations in a tender bid, breach of contract, and breach of a duty of good faith.

The Court of Appeal applied the three-step process from Scalera to determine the true nature of the claims.

The court found that the essential character of the claims related to the tender process and contractual performance, which were unambiguously excluded under the policy.

The appeal was dismissed.

The appellant insurer sought contribution from the respondent insurer for a $2.75 million settlement paid to a student injured at a university judo club.

Coverage under the respondent's policy depended on whether the club was a 'member club' of the provincial judo association at the time of the accident.

Although the club had not paid its annual fees, the Court of Appeal found that under the association's by-laws, membership continues until formal suspension or expulsion.

Since no such action was taken, the club remained a member, and the respondent's policy provided coverage.

The appeal was allowed.

The insured was left with quadriplegia following an automobile accident in Jamaica caused by an underinsured motorist.

The insured sought coverage under the underinsured motorist endorsement of their standard Ontario Automobile Policy.

The insurer denied coverage, relying on the territorial limitation in the main policy.

The motion judge found the endorsement ambiguous and ruled in favour of the insured.

On appeal, the Court of Appeal held that the endorsement clearly incorporated the territorial limitation of the main policy.

The appeal was allowed, and the court declared that the endorsement did not provide coverage for the accident in Jamaica.

Following a successful appeal, the appellants and respondents agreed that the court's previous statement regarding costs at first instance was erroneous.

The court received written submissions on the proper disposition of costs at first instance.

Given that the appeal reversed the partial summary judgment granted to the respondents, both parties were entirely unsuccessful at first instance.

The court set aside the costs order below and remitted the costs of the motions at first instance to the trial judge, who would be in the best position to assess their relative importance in light of the trial result.

The appellants appealed a motion judge's decision granting partial summary judgment to the respondent municipalities.

The motion judge had dismissed the appellants' claim that the expropriation of their mall lands for a new Toyota plant was illegal per se.

The Court of Appeal allowed the appeal, finding that genuine issues for trial existed regarding whether the expropriation price was below fair market value (constituting an illegal bonus under the Municipal Act), whether the expropriation conformed to the official plan under the Planning Act, and whether the municipality acted in bad faith.

The appellants appealed a summary judgment dismissing their action against the municipality for a motor vehicle accident on a snow-packed road.

The Court of Appeal found the motion judge erred in granting summary judgment, as the municipality did not put causation in issue and there was conflicting evidence regarding whether it met its standard of care under the Municipal Act.

The appeal was allowed, the summary judgment was set aside, and the matter was directed to trial.

The appellants, former nursing students at Loyalist College, sought to certify a class action against the college for breach of contract and negligent misrepresentation.

They alleged the college falsely promised a 'Queen's option' allowing them to obtain a nursing degree from Queen's University after completing two years at Loyalist.

The motion judge and Divisional Court dismissed the certification motion, finding no identifiable class or common issues.

The Court of Appeal allowed the appeal, holding that the lower courts erred in their application of section 5 of the Class Proceedings Act.

The Court found that the pleadings disclosed a cause of action, there was an identifiable class, common issues existed regarding the contract and representations, and a class proceeding was the preferable procedure.

The appellant surety appealed a trial judgment enforcing a customs bond in favour of the Canada Customs and Revenue Agency (CCRA).

The appellant argued the CCRA failed to produce relevant documentation to substantiate the claim.

The Court of Appeal dismissed the appeal, finding that section 107 of the Customs Act precluded the CCRA from disclosing importer names to the surety, and that the production of summaries and a dishonoured cheque satisfied the bond's disclosure requirements.

The court varied the judgment only to correct the principal amount upon which interest was calculated.

The appellants, operators of a group home, appealed a civil jury verdict that found them 80% liable and the Children's Aid Society 20% liable for severe frostbite injuries suffered by a developmentally challenged student who went absent without leave from his high school.

The jury found the school board 0% liable.

The Court of Appeal dismissed the appeal, holding that the jury's finding of no negligence by the school board was supported by the evidence, particularly the appellants' failure to communicate prior runaway incidents to the school.

The court found no palpable and overriding error to justify interfering with the jury's apportionment of liability.