Timothy J. Hill

The Court of Appeal for Ontario heard appeals regarding a flooded access road.

The Township of Georgian Bluffs and the Ministry of Transportation appealed a lower court decision that found the road public, obligated the Township to maintain it, and ordered the Ministry to restore culverts and indemnify the Township.

The Crown's appeal was allowed due to procedural unfairness, as no relief was sought against the Ministry in the original application.

The Township's appeal was dismissed, affirming the public nature of the road based on historical statute labour and common law dedication and acceptance, and upholding its obligation to restore the road.

The respondents (Purchaser) brought a motion to stay an application by the applicant (Vendor) for production of documents related to post-closing adjustments in a share purchase agreement.

The core issue was whether a clause in the SPA, which referred unresolved matters to an "Independent Accountant" for a binding determination, constituted an arbitration agreement under the Arbitration Act, 1991, or merely an expert determination clause.

Applying the indicia from Sport Maska Inc. v. Zittrer, the court found that the clause was an arbitration agreement because it involved a formulated dispute, required the Independent Accountant to exercise a judicial function based on party submissions, and resulted in a final and binding decision.

Consequently, the court granted the stay of the Production Application, holding that all issues related to the working capital adjustment, including document production, should be determined by the Independent Accountant (arbitrator) in the first instance.

Following a successful appeal, the appellant sought costs for the appeal and the proceeding below.

The respondent disputed the amount claimed for disbursements, specifically the fees of the appellant's experts.

The Court of Appeal held that expert fees are subject to a reasonableness test and reduced the claimed disbursements, noting the experts were not called to testify and their fees were significantly higher than those of the respondent's experts.

The court awarded the appellant fixed costs for both the appeal and the proceeding below.

The City of Ottawa appealed a trial judgment that found it liable for negligent misrepresentation to Charlesfort Developments Limited.

Charlesfort claimed the City failed to accurately inform it about a water main in an easement during a rezoning process, leading to significant project delays and increased costs for a condominium development.

The Court of Appeal allowed the City's appeal, holding that the City did not owe Charlesfort a private law duty of care.

The Court clarified that the City's undertaking in processing a rezoning application was to fulfill its statutory duty in the public interest, not to protect the developer's economic interests or assure project viability.

The Court of Appeal for Ontario allowed an appeal by an insurer, Co-operators General Insurance Company, finding it had no duty to defend its insureds, Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc., against a class action and a third-party claim.

The claims arose from a data breach where a confidential report was hacked from FCS's website and posted online.

The court held that the data exclusion clauses in both the Commercial General Liability (CGL) and Professional Liability policies were unambiguous and clearly excluded coverage for claims arising from the electronic distribution or display of data.

The court rejected arguments that the exclusion clauses nullified the policies or that there were non-electronic claims, emphasizing that the substance of the claims solely related to online data dissemination.

The defendants, comprising law firms and solicitors, brought two summary judgment motions seeking to dismiss professional negligence claims brought against them by the plaintiffs.

The plaintiffs alleged negligence for failing to advise them of their rescission rights under the Arthur Wishart Act (Franchise Disclosure) 2000.

The court dismissed both motions, finding that there were genuine issues requiring a trial regarding the scope of the retainers, the duty of care owed by the defendants, and causation.

The court emphasized the need for a trial to assess witness credibility and the necessity of expert evidence in professional negligence claims, and declined to grant partial summary judgment due to the interconnectedness and complexity of the claims.

The Town of Lincoln sought a declaration that AIG Insurance Company of Canada had a duty to defend it under a public entity general insurance policy.

The Town was a defendant in a negligence action alleging sewage overflow due to a ruptured pipe, disrepair of a storm sewer, and improper land grading.

AIG denied coverage based on a pollution exclusion clause.

The court found that the claim against the Town had two branches: one related to the pumping station and sewage flood (potentially subject to exclusion), and another related to the storm sewers and land grading (not subject to the exclusion).

As the second branch was not derivative and concerned a different wrongdoing, the pollution exclusion did not apply to it.

Therefore, the insurer had a duty to defend.

The plaintiff noted several defendants in default.

The Vaughan Defendants and Antonio Gentile brought motions to set aside the noting in default.

The plaintiff argued that a motion to strike the statement of claim was not a step in defending the action, and that statements of defence were still required.

The court found that serving a notice of motion to strike the claim constitutes a step in the proceeding, making the noting in default irregular.

Additionally, the defendants met the criteria under Rule 19.03 for setting aside default.

The court set aside the noting in default for all defendants and awarded partial indemnity costs of $7,000 to both the Vaughan Defendants and Antonio Gentile, payable by the plaintiff.

Following dismissal of an appeal from an arbitrator’s decision, the successful party sought full indemnity costs on the basis that the appeal was hopeless and should never have been brought.

The court reviewed the governing principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, noting that full indemnity costs require reprehensible, scandalous, or outrageous conduct.

The court found that although the appellant was unsuccessful, the appeal was not frivolous or vexatious and counsel’s conduct was professional.

The request for full indemnity costs was therefore rejected.

Partial indemnity costs of $10,492.46 were awarded as fair and reasonable in the circumstances.

The appellant appealed an arbitrator’s ruling under ss. 45(2) and (3) of the Arbitration Act, 1991 after the arbitrator dismissed a motion seeking to strike or limit the respondent’s claims based on an exclusion clause in a distribution agreement.

The court held that the arbitrator’s decision was interlocutory rather than a final award because it did not dispose of the substantive dispute and instead required factual findings at a full hearing.

Under the Arbitration Act, interlocutory rulings in arbitration are not subject to appeal.

The court further found no error in the arbitrator’s conclusion that interpretation of the contractual limitation clause required consideration of the factual matrix.

The appeal and challenge to the arbitrator’s costs award were dismissed.

Municipal taxpayers brought an action challenging a waterfront redevelopment project involving a municipality and a private developer.

The plaintiffs sought declarations that agreements transferring municipal land in exchange for community benefits were ultra vires, constituted illegal bonusing under s.106 of the Municipal Act, 2001, lacked consideration, and created an unlawful partnership.

On cross-motions for summary judgment, the court held the contractual arrangement fell within the municipality’s broad powers under ss. 8, 9, and 11 of the Municipal Act, 2001 and s.37 of the Planning Act.

Viewing the transaction as a whole, the court found the municipality received substantial community benefits and economic advantages, meaning the arrangement did not confer an obvious or undue advantage on the developer.

The plaintiffs’ claims were dismissed and summary judgment granted to the defendants.