William G. Scott

Following a successful application for insurance indemnity, the applicants sought full indemnity costs of $291,052.22.

The court held that the applicants were entitled to full indemnity costs because the insurer wrongfully denied coverage and provided vague reasons until shortly before the hearing.

However, the court found the requested quantum excessive due to over-lawyering and duplication of previous application records.

Costs were fixed at $140,000 inclusive of HST and disbursements.

This decision addresses the costs of a motion brought by the plaintiff, Innocenzo Lippa, to set aside an administrative dismissal for delay, which was ultimately dismissed.

The plaintiff proposed $10,000 in partial indemnity costs, while the defendant, Advanced Software Concepts Inc., sought $64,000 in substantial indemnity or $45,000 in partial indemnity.

The court declined to award elevated costs, finding no reprehensible conduct by the plaintiff.

However, it determined that a significant partial indemnity award was justified given the importance of the motion to the defendant and the work involved.

The court found the defendant's requested costs excessive, particularly for factum and argument preparation, and applied a 50% reduction.

The plaintiff moved to set aside a registrar's order dismissing his wrongful dismissal action for delay.

The court applied the test for setting aside an administrative dismissal order, considering the explanation for delay, inadvertence, promptness of the motion, and prejudice.

Despite the dismissal being due to inadvertence and the motion being brought promptly, the plaintiff failed to provide an adequate explanation for the nearly five-year delay and could not rebut the strong presumption of prejudice to the defendant, particularly given the subjective nature of the evidence required for the wrongful dismissal claim.

The motion to set aside the dismissal was denied.

This case involves an application and cross-application concerning the entitlement to $100,000 in proceeds from an after-the-event (ATE) legal protection insurance policy.

The primary applicant, Peter B. Cozzi Professional Corporation, sought a declaration that the proceeds belonged to the client, Quoc Nguyen, and were assignable to Cozzi for disbursements.

The cross-applicant, Aviva Insurance Company of Canada, sought a declaration that it was entitled to the proceeds to satisfy an adverse costs order against Nguyen.

The court found that the contingency fee agreement (CFA) between Cozzi and Nguyen was unenforceable due to Nguyen's disability and lack of proper court approval or litigation guardian involvement.

Consequently, Cozzi was not entitled to apply the proceeds to his disbursements.

The court also found that Aviva had no entitlement to the proceeds under the ATE policy due to lack of privity of contract.

Both applications were dismissed, and the proceeds were ordered to remain in trust pending a determination of who should act on behalf of Mr. Nguyen for their disposition.

This case involves an application and cross-application concerning the entitlement to $100,000 in proceeds from an after-the-event (ATE) legal protection insurance policy.

The primary applicant, Peter B. Cozzi Professional Corporation, sought a declaration that the proceeds belonged to the client, Quoc Nguyen, and were assignable to Cozzi for disbursements.

The cross-applicant, Aviva Insurance Company of Canada, sought a declaration that it was entitled to the proceeds to satisfy an adverse costs order against Nguyen.

The court found that the contingency fee agreement (CFA) between Cozzi and Nguyen was unenforceable due to Nguyen's disability and lack of proper court approval or litigation guardian involvement.

Consequently, Cozzi was not entitled to apply the proceeds to his disbursements.

The court also found that Aviva had no entitlement to the proceeds under the ATE policy due to lack of privity of contract.

Both applications were dismissed, and the proceeds were ordered to remain in trust pending a determination of who should act on behalf of Mr. Nguyen for their disposition.

The appellant appealed the dismissal of a personal injury action for delay.

The action arose from an accident in 2002, was issued in 2004 and served late.

At the time of the appeal decision, 14 years had passed since the action commenced and nearly 17 years since the accident.

The motion judge found the plaintiff responsible for the overall delay.

The Court of Appeal upheld the dismissal, finding the delay inordinate and inexcusable, with prejudice presumed from the length of delay and clear evidence of actual prejudice present.

Four consolidated appeals from orders of a motion judge who dismissed actions brought by appellants against resort management companies based on a foreign limitation period.

The appellants purchased vacation packages to a Dominican resort and alleged that two of their group were injured when a balcony railing gave way on January 1, 2011.

The motion judge dismissed the actions as statute-barred under Dominican law, which imposed a six-month limitation period for tort claims.

The Court of Appeal found that the motion judge erred by failing to conduct a proper jurisdictional analysis and by making palpable and overriding errors of fact regarding whether the appellants had a contractual claim against the respondents.

The court found that Ontario courts had jurisdiction and that the motion judge's reasons were inadequate for appellate review.

The City of Kawartha Lakes appealed a Master's order compelling its solicitor to answer questions and produce documents on cross-examination regarding an affidavit she swore.

The Master found that the City had waived solicitor-client and settlement privilege by voluntarily disclosing detailed narratives of its conduct, legal advice, and settlement negotiations in the affidavit.

The Superior Court dismissed the appeal, upholding the Master's findings that the information was relevant and that the privileges had been waived.

The court also confirmed that section 239 of the Municipal Act does not create a new 'closed session' privilege.

The appellants commenced a motor vehicle accident action in December 2010 following a collision in December 2008.

The action was administratively dismissed as abandoned in August 2011 pursuant to rule 48.15 of the Rules of Civil Procedure.

The appellants moved to set aside the dismissal in February 2014, more than two years after the dismissal order.

A master granted the motion to set aside, but the Superior Court judge allowed the respondents' appeal and reinstated the dismissal.

The appellants appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, finding that the master erred in considering the repeal of rule 48.15 as part of the contextual analysis, erred in assigning fault to the respondents for not filing a defence, erred in finding that the appellants always intended to prosecute the action without evidence to support this finding, and critically erred in failing to consider the finality principle in assessing prejudice to the respondents.

The plaintiff and defendants both brought unsuccessful motions for summary judgment in an action for solicitor negligence arising from a medical negligence claim.

The court determined the costs for both motions.

The defendants were awarded $18,196.23 in costs for the plaintiff's motion, with expert disbursements of $9,570 ordered as costs in the cause.

The plaintiff was awarded $12,161.56 in costs for the defendants' motion, with the court reducing the plaintiff's claimed fees to reflect the fair and reasonable expectations of the unsuccessful party.

The appellant appealed the dismissal of its motion to amend its amended statement of claim to add particulars of additional equipment allegedly damaged by defective hydraulic lubricant manufactured by the respondent, Greenland Corporation.

The motion judge had rejected the amendments on the basis that they constituted new, statute-barred causes of action.

The Court of Appeal allowed the appeal, finding that the motion judge erred in misinterpreting the pleadings and in conflating the discovery of the claim with the discovery of the extent of damages.

The court held that all alleged damage stemmed from a single cause—the defective hydraulic lubricant—and therefore constituted particulars of one claim rather than separate causes of action.

The plaintiffs brought a motion to compel the defendant to answer questions refused during an examination for discovery in an action for damages caused by a leaking oil tank.

The plaintiffs sought information about other customer complaints and claims regarding corroded steel tanks.

The court found that the defendant's previous answers were evasive and ordered the defendant to provide a detailed list of all customer complaints or claims about water build-up or leaks between 2002 and 2011.

The court also ordered the production of reports to the TSSA and advice received from insurers regarding risk mitigation, while upholding privilege over reports made to insurers.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

The plaintiff brought a motion to set a timetable for trial, while the defendants sought to dismiss the action for delay.

The plaintiff's lawyer cited medical and practice issues to explain the delay, which the court found lacked particularity.

Furthermore, a key defendant who provided independent legal advice had suffered a stroke and severe memory loss during the delay, causing non-compensable prejudice.

The court applied the Faris test and dismissed the action for delay.

The defendant insurer brought a motion to dismiss the plaintiff's action for long-term disability benefits, arguing it was statute-barred under the Limitations Act, 2002.

The insurer had initially denied the claim but offered an internal appeal process to review additional medical information.

The court held that it was not 'legally appropriate' for the plaintiff to commence an action while the appeal process was ongoing and the medical record was incomplete.

The limitation period did not begin to run until the insurer issued its final decision.

The motion was dismissed as the action was commenced within time.

The plaintiff brought a motion to set aside a Registrar's order dismissing its $104 million action for delay.

The action involved claims of breach of contract and fiduciary duty against a former director.

The court found that the litigation delay was adequately explained by the ongoing discoveries and undertakings, and that the failure to set the action down for trial was due to counsel's inadvertence.

Finding no actual prejudice to the defendants, the court exercised its discretion to set aside the dismissal order.

The plaintiff brought a motion to set aside a Registrar's Order dismissing her motor vehicle accident action for delay.

The action was dismissed in January 2014 after the plaintiff failed to set it down for trial by the deadline.

Applying the Reid factors, the court found the plaintiff failed to adequately explain the delay, failed to prove inadvertence, did not move promptly to set aside the dismissal, and failed to rebut the presumption of prejudice to the defendants given the passage of nearly ten years since the accident.

The motion was dismissed.

The plaintiff moved under Rule 37.14(8) to set aside a Registrar's Order dismissing her action as abandoned, which arose from a 2009 pedestrian-motor vehicle accident.

The action was dismissed in 2012 due to former counsel's inadvertence and erroneous beliefs regarding case management and the Ontario Motor Vehicle Accident Claims Fund.

The plaintiff's new counsel discovered the dismissal in 2015, and the motion was brought in 2016.

The defendant opposed, citing personal hardship and the passage of time.

The court applied a contextual approach to the four Reid factors, finding the delay unintentional and the dismissal inadvertent, and that the defendant would not suffer actual prejudice.

The motion was granted, setting aside the dismissal and allowing the action to proceed to trial.

The appellant filed a notice of appeal seeking to set aside a decision of the Superior Court of Justice.

The lower court had issued five separate judgments in five different actions that were heard together but not consolidated.

The notice of appeal did not reflect the style of any of the five judgments, and no appeal from any individual judgment fell within the monetary jurisdiction of the Court of Appeal.

The court found it lacked jurisdiction to consolidate matters resulting in five separate judgments and transferred the matter to the Divisional Court, which possessed the appropriate monetary jurisdiction.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.