Vanessa De Sousa

The defendants to the counterclaim brought a motion to set aside a noting in default.

Their counsel inadvertently missed the deadline to deliver a defence to the counterclaim after a negotiated resolution of a prior motion to strike.

The court found that the moving parties demonstrated a clear intention to defend the counterclaim, the delay was due to counsel's inadvertence, and the motion to set aside was brought promptly.

The court exercised its discretion to set aside the noting in default to allow the complex claims to be resolved on their merits.

Kin Canada and The Kinsmen Club of Oshawa (Applicants) brought an application seeking a declaration that their insurers, Ecclesiastical Insurance Office Public Company Limited and Certain Non-Marine Underwriters o/a Lloyd’s Of London and Lloyd’s Canada (Respondents), had a duty to defend them in an underlying lawsuit.

The underlying claim involved damages related to the discovery of underground oil storage tanks (USTs) on a property sold by The Kinsmen Club of Oshawa in 2005, with allegations of negligent misrepresentation and mismanagement, and vicarious liability against Kin Canada.

The court found that the pollution exclusion clauses in both insurance policies applied, as the true nature of the underlying claim was environmental pollution arising from leaking USTs and the failure to comply with regulatory requirements for their removal.

Consequently, the court dismissed the application, ruling that the duty to defend did not arise for either insurer.

The plaintiff brought an action for injuries sustained after slipping and falling on a retaining wall dividing the parking lots of a KFC and a TD Bank.

The remaining defendants brought a motion for summary judgment to dismiss the action on liability.

The court found that the barrier was intended to block vehicles, not for pedestrian crossing, and there was no evidence of regular pedestrian use that would create a duty to maintain it for that purpose.

Furthermore, the plaintiff's evidence regarding the fall was contradictory and unreliable.

The court granted the motion for summary judgment and dismissed the action.

This endorsement addresses three issues arising from a prior trial judgment: the statutory deductible for non-pecuniary damages, the prejudgment interest rate, and the costs of the action.

The court determined that the 2019 statutory deductible applied, reducing the net non-pecuniary damages.

The prejudgment interest rate was fixed at 1%, rejecting the plaintiff's request for a higher rate due to the defendant's conduct.

On costs, the court found the plaintiff was entitled to partial indemnity costs up to the Rule 49 offer date and substantial indemnity costs thereafter, criticizing the defendant's inflexible settlement approach.

The court adjusted the plaintiff's requested hourly rates and disbursements, ultimately fixing fees at $300,000 plus HST and disbursements at $39,864.56 plus HST.

The plaintiff brought an action for damages arising from a motor vehicle accident.

Following a jury verdict awarding net general damages of $11,181.03, the court considered whether the plaintiff's injuries met the statutory threshold under the Insurance Act.

The court found that the plaintiff, whose primary role was a homemaker, sustained permanent and serious impairments to important physical and psychological functions, including PTSD and depression.

The court ruled that the injuries met the threshold and dismissed the defendant's motion.

The plaintiff, Peter St. Marthe, sued the defendant for injuries sustained in a bicycle-car collision.

The defendant admitted liability, leaving the court to determine damages, contributory negligence, whether the plaintiff met the permanent serious impairment threshold, and if the action was statute-barred.

The court found the plaintiff's claim was not statute-barred, he met the permanent serious impairment threshold, and was not contributorily negligent.

Damages were awarded for non-pecuniary loss, past and future income loss, and future housekeeping and home maintenance expenses.