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ACE INA Insurance and Associated Electric & Gas
This was an appeal the dealt with the principal equitable contribution between
insurers.
Toronto Hydro had a primary insurance policy with a one million dollar limit
and that policy included a duty to defend.
Defence cost paid under that policy did not erode the policy limit.
Toronto Hydro also had an umbrella policy
with a 45 million dollar limit per occurence. That policy didn't include a
duty to defend but it did include a duty to indemnify for defence costs
and any monies paid under that indemnity
did erode the primary policy limit so the issue for the Court of Appeal was
whether or not the umbrella insurer had to contribute
the money toward the defence costs that were being born by primary insurer.
The Court of Appeal looked at the policies, they were sophisticated contracts
negotiated by sophisticated parties
and found that the policies didn't insure the same risk.
The premium structure suggested Toronto Hydro wanted to be fully insured
but it didn't want to pay twice to be injured for the same risk,
so, in the end because the policies insured slightly different risks
there was no duty to contribute to the defense costs on the part of the umbrella
insurer.
Zavarella and Zavarella. This was an appeal in a family law matter.
The issue was how to treat the debt that the wife brought into the marriage.
The wife had made an assignment into bankruptcy a few months before the
marriage, and some months after the marriage she was discharged,
without ever having paid anything on the debts. The Court of Appeal had to consider
what the value of those debts were
for the purposes of the NFP calculation.
The majority of the Court of Appeal found that the debts should be valued at zero.
This was consistent with the policy behind the NFP scheme which
seeks to have each spouse equally share
in the growth of wealth during the course of the marriage and so what they did is they
looked at the debt,
and they considered the reasonable likelihood that the debt would ever
be paid. Expert evidence said it wasn't likely that the debt was ever gonna be
paid and in fact the debt never was paid so on that basis
the majority valued the debt at zero. Justice Juriansz, in dissent,
found that the debt should have been valued at its face value for the purposes of
the NFP calculation.
The NFP calculation is a formulaic one set out by
statute and Justice Juriansz worried that if the Court began an inquiry into
the qualitative nature of
the debt, that it would invite further family law litigation which he did not
consider desirable.
Smith and Inco. This was an appeal from cost decision
arising out of an unsuccessful class proceeding. The defendant had sought costs of over
5 million dollars before the trial judge
and had been awarded costs more than 1.7 million.
The defendant appealed and raised a number of arguments in the course of its
appeal on costs.
A couple of arguments were particularly interesting; in particular the defendant
argued
that the trial judge had been wrong to consider that the cause of action
advanced by the plaintiff class had been novel
because the cause of action was grounded in traditional causes of action like
nuisance and trespass.
The Court of Appeal found that the Trial Judge had not erred
when he considered the fact that although the causes of action themselves
were traditional,
they have been applied in this case in a novel context that was an environmental
context
and as a result the Court of Appeal said that the Trial Judge
was correct to include that in his structuring of the costs award.
The other issue that was interesting was the defendants argued that the trial
judge had wrongly considered the fact
that a significant costs award would
hamper access to justice because the plaintiff class in this case was funded
by the Class Proceedings Fund
which is administered by The Law Foundation of Ontario. The Court of Appeal looked
at the Trial Judge's reasons and said
that it was not improper for him to consider the
effect of a significant cost award on the Class Proceedings Fund
because he brought a balanced approach that consideration.
Western Larch Limited. This was a case about the enforceability of
a shotgun buy-sell offer. The parties had an authorizing agreement with the shotgun
buy-sell provisioning and a group partners made an offer,
a shotgun buy-sell offer, pursuant to the agreement to the other partner.
The offer had two alternatives with respect to the treatment of
debt one of which was clearly non-compliant the authorizing agreement.
The issue for the Court of Appeal was when a court would enforce a shotgun buy-sell
offer.
The court held that a shotgun buy-sell offer would be enforceable if
it was strictly compliant with the authorizing agreement.
Strict compliance did not mean perfect compliance however,
and the Court found that to determine whether a provisional or an offer was
strictly compliant with the provisions,
it would look at things like the language of the authorizing agreement and
the reasonable commercial expectations of the parties.
The fact that the offering question had
an alternative that was clearly non-compliant was really of no moment.
If that alternative had been accepted by the partner,
then it would have esentially operated as an amendment to the authorizing
agreement. Not having been accepted, it was neither here nor there. The court would
enforce
the shotgun buy-sell offer with the alternative that was strictly compliant
with the authorizing agreement.
Versailles Convention Center and Gilmore.
This was a case where a minority shareholder
retained counsel to bring an oppression action against the corporation Versailles
and two majority shareholders. The minority shareholder succeeded in getting a
supervisor appointed for the corporation
and an order that the plaintiff's counsel's
bills would be paid out of the fund of the corporation by the supervisor.
The supervisor authorized payments of the
solicitor's account in an amount that was almost $40,000 greater
than the amount that had been put forward on the cost outline at the motion.
The majority shareholders had concerns about that and
tried getting ahold of copies of the account and weren't able to do that.
About two years and two months after the accounts were paid, the majority shareholders
were able to obtain
redacted copies of the accounts and it looked like some of the solicitors time
might have been paid for twice.
They were concerned and they sought an order for an assessment of the solictor's
costs which was well beyond the one year period
within which solicitor's accounts can be assessed.
The motion judge did not allow the assessment and concluded that the
majority shareholders were trying to challenge the validity of the court
order
that provided for the solicitor's accounts to be paid out of the funds of the corporation.
The Court of Appeal disagreed; it found that what was being challenged
was not the
court order itself but it was an assessment of the account that was sought.
They had made reasonable efforts to try to get copies of the accounts earlier and
weren't able to obtain them.
The Court of Appeal declined to impute the knowledge of the supervisor to the corporation;
It found there would be no prejudice in allowing the assessment to proceed
and that there were special circumstances here, good reason to
question the amounts that had been paid
and in the result they ordered the assessment to go ahead.