Thomas Jack Macmillan

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

The plaintiff in a slip and fall action brought a motion seeking answers to undertakings, refusals, and questions taken under advisement.

The parties resolved most issues, but the court upheld the defendant's refusal to produce accident response training modules, finding them irrelevant to liability or damages.

The court also ruled that the plaintiff improperly included privileged mediation brief excerpts in her motion record, ordering their removal and a sealing order.

Costs were awarded to the plaintiff on a partial indemnity basis, reduced due to the improper inclusion of privileged materials.

The Court of Appeal for Ontario issued supplementary reasons to its earlier judgment in Nemchin v. Green, 2021 ONCA 238, which had allowed the appellant's appeal regarding the "top-up" of long-term disability benefits assigned to the respondent's insurer, Aviva.

This addendum addresses the treatment of potential tax refunds from Sun Life's remittances and the allocation of expenses related to pursuing such refunds.

The court clarified that while Aviva is not compelled to seek tax refunds or cease tax deductions, if Aviva chooses not to pursue a tax refund, it must reimburse the appellant's reasonable expenses for bringing such an application, as Aviva would ultimately receive the benefit of any tax refunds.

This is a costs endorsement following an appeal where the Court of Appeal allowed the appellant's appeal, setting aside a trial judge's order requiring the appellant to "top up" assigned benefits due to tax deductions.

The appellant was awarded partial indemnity costs for the appeal.

This endorsement specifically addresses the costs of a prior motion before the trial judge (the "top up motion"), for which the trial judge had made no costs order.

The Court of Appeal found the appellant entitled to costs for this motion, ordering the respondent to pay $10,000, reasoning that the unanticipated nature of the trial judge's order and the parties' failure to seek an advance tax ruling contributed to the litigation.

The appellant appealed a trial judge's order requiring her to "top up" assigned long-term disability benefits to account for income tax deductions, arguing procedural unfairness and misinterpretation of s. 267.8 of the Insurance Act.

The Court of Appeal found the "top up" order procedurally unfair as it was not requested by parties and misinterpreted the statutory trust and assignment provisions.

The court held that the assignment applies to net after-tax payments, and the respondent's insurer, as assignee, must bear the burden of addressing tax implications with the insurer and CRA.

The appeal was allowed, and the "top up" order was set aside.

The defendant Redi-Mix brought a summary judgment motion to dismiss the plaintiff Youssef's claim after Youssef was seriously injured when his motorcycle struck a donkey that had escaped from Redi-Mix's rented property.

Youssef cross-sought summary judgment on liability.

The court found that Redi-Mix, as a residential landlord, was negligent in failing to maintain and inspect the fences, as required by the Residential Tenancies Act and its regulations, which allowed the donkeys to escape and cause a public nuisance.

The court dismissed Redi-Mix's motion and granted summary judgment on liability in favour of Youssef against Redi-Mix, reserving damages for trial.