Law Times

Law Times • may 28, 2018 Page 15 www.lawtimesnews.com G $1.3 million in action against D Ltd., apportioning liability for parties' agreed-upon dam- ages of $2,161,570 at 60 per cent to G and 40 per cent to D Ltd. and dismissing G's claim and D Ltd.'s cross-claim against TSSA. Hearing was held to determine costs. G was awarded costs on partial indemnity basis as against D Ltd., fixed at $465,000, inclusive, for trial, and $8,000 for post-trial motion; TSSA was awarded costs on partial indem- nity basis, fixed at $150,000 in- clusive for trial, with $140,000 payable by G and $10,000 by D Ltd. and for post-trial motion fixed at $7,500, divided equally between G and D Ltd.. Neither G's nor D Ltd.'s offer was beaten or even close so had no bearing on costs award. G's settlement in midst of trial with other defen- dant which brought G's recov- ery to just over half initial claim, was to be considered in deter- mining his success. G's limited recovery was not due to exag- gerated claim but contributory negligence. G's counsel's hourly rates were reasonable. Action was complex tort action with numerous experts and factual disputes. There was overlap with G's related claim but actions were not coterminous. Some reduction was made for duplica- tion due G's seven lawyers. It was not appropriate to apportion costs on same percentage basis as liability. For costs as between TSSA and G, general principle of partial indemnity costs was to be adhered to as neither G nor D Ltd. were successful against TSSA but TSSA's confusing or- der and form and TSSA's inspec- tor's confusion of remediation and delineation orders meant substantial indemnity costs were not appropriate. As TSSA's costs included some duplication and its limited involvement in trial did not require two counsel, costs were to be reduced appro- priately. AS D Ltd.'s cross-claim was minor factor, D Ltd. was li- able for less than 10 per cent of TSSA's costs in trial. Gendron v. Thompson Fuels (2018), 2018 CarswellOnt 4970, 2018 ONSC 2079, R.E. Charney J. (Ont. S.C.J.); additional rea- sons (2017), 2017 CarswellOnt 10909, 2017 ONSC 4009, R.E. Charney J. (Ont. S.C.J.). (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 17923, 2017 ONSC 6856, R.E. Charney J. (Ont. S.C.J.). Estates and Trusts ESTATES Construction of wills Issues raised not of sufficient novelty to justify departure from " loser pays" presumption Plaintiff, deceased's daughter, brought successful action against defendant, deceased's son, for order directing distribution of mother's estate in accordance with terms of deceased's will. Parties were residuary beneficia- ries under will. As result of judg- ment, plaintiff was entitled to re- ceive special bequest of $145,000 from funds available for distri- bution under will. Parties made submission on costs. Plaintiff awarded costs of $70,000. As successful party, plaintiff was entitled to her costs on partial indemnity basis. Neither party relied on conduct of egregious or reprehensible nature by other party as relevant costs consid- eration. Neither of offers made by parties prior to trial justified awarding different scale of costs under R. 49 of Rules of Civil Pro- cedure. No policy reasons dictat- ed making order that defendant's costs should be payable out of es- tate. Issues raised in action were not of sufficient novelty to jus- tify departure from "loser pays" presumption that would other- wise apply. Legal costs resulting from defendant's unsuccessful challenge to will would have consumed special bequest of $145,000 that deceased intended plaintiff to have, together with entire balance of residuary. Shift from regime where estate rou- tinely pays legal costs of unsuc- cessful challenging party was in- tended to avoid exactly that type of result. Plaintiff was entitled to her costs of action on partial in- demnity basis, fixed at $70,000 including disbursements and tax, payable by defendant. Campbell v. Evert (2018), 2018 CarswellOnt 5960, 2018 ONSC 2258, R.A. Lococo J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 988, 2018 ONSC 593, R.A. Lococo J. (Ont. S.C.J.). ESTATES Miscellaneous Policy contemplated changes of ownership and beneficiaries in manner effected Life insurance policy was origi- nally issued in names of M.O.'s mother and father. Mother passed away in 1998, and father changed beneficiary designation to M.O.. In 2006, after insurer was acquired by another insur- ance company, father signed policy assignment which pro- vided that it had effect of can- celling all previous beneficiary designations. Father passed away in 2013. On motion for summary judgment, order was issued declaring that life insur- ance proceeds were payable to estate. M.O. appealed. Appeal dismissed. Motion judge prop- erly concluded that by execut- ing assignment, father intended estate to be beneficiary of policy. Assignment was signed in pres- ence of father's insurance agent. On motion, M.O neglected to file evidence corroborating any intention by father that M.O. would be beneficiary under policy. Evidence was in fact to contrary; 2012 policy statement showed estate as beneficiary. M.O. failed to adduce evidence from insurance agent about what transpired at meeting when assignment was executed. Assignment was not nullity; policy contemplated changes of ownership and beneficiaries in manner effected by father. Oza v. Oza (2018), 2018 Car- swellOnt 5672, 2018 ONCA 360, S.E. Pepall J.A., L.B. Roberts J.A., and B.W. Miller J.A. (Ont. C.A.). Family Law SUPPORT Child support under federal and provincial guidelines Amount paid to capital account not qualifying deduction Parties were married for eight years and had two children. Par- ties entered into separation agree- ment that provided for shared custody arrangement with no child support. Older child was attending university away from home. Mother's second marriage ended and her financial situation had deteriorated, while father had become partner in his archi- tectural firm. Mother brought motion to change to vary child support. Motion granted. There had been material change in cir- cumstances, as mother's financial affairs were inextricably inter- twined with those of her second husband and father's income changed when he purchased partnership interest in architec- tural firm. Mother's income con- sisted of her employment income plus lump sum spousal support she received from her second husband. Mother's 2014 income was $54,681, and her 2015 in- come was $50,360. Father had no ability to inf luence reporting of his share of partnership prof- its due to his company. Father's income consisted of partnership profit, which was pre-tax cor- porate earnings less expenses including reasonable salary paid to his wife, car allowance and bonus. Methodology provided fairness in calculating income for child support purposes. Father's 2014 income was $248,702, and his 2015 income was $94,007. Amount paid to father's capital account in 2014 was not deducted from his income pursuant to s. 12 of schedule III of Federal Child Support Guidelines, as amount was not qualifying deduction against his 2014 pre-tax corpo- rate earnings but was profit allo- cation from partnership. Father owed child support of $21,887 for 2014 and 2015. Father was to pay ongoing child support of $450 per month when older child was away at university, and $750 per month if and when older child returned home from university. Abelman v. Abelman (2017), 2017 CarswellOnt 4411, 2017 ONSC 1810, H.A. McGee J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE Extent of risk ATV not "automobile" within meaning of insurance law Applicant was resident of On- tario who was living in British Columbia. He was passenger on all–terrain vehicle ("ATV") owned by resident of British Columbia when ATV was in accident, resulting in applicant being seriously injured. ATV was owned by resident of British Columbia and was neither in- sure nor required to be insured. Applicant held standard Ontario automobile insurance policy, which did not list ATV as in- sured vehicle. Applicant applied for accident benefits pursuant to Ontario Statutory Accident Benefits Schedule ("SABS"). Fi- nancial Services Commission of Ontario ("FSCO") arbitrator held that applicant was not involved in "automobile accident" covered by SABS because ATV was no "automobile" within meaning of insurance laws of British Colum- bia. Applicant appealed, but Di- rector's Delegate of FSCO upheld arbitrator's decision. Applicant brought application for judicial review. Application dismissed. ATV was operated and accident happened in British Columbia. Decision to have or not to have insurance for this vehicle was taken in British Columbia. Brit- ish Columbia legislation must determine whether there is en- titlement to benefits resulting from this accident. This ATV was not required to be insured under any motor vehicle liabil- ity insurance policy because this ATV was operated in British Co- lumbia where ATVs need not be insured. At time and in circum- stances of this accident, this ATV was not insured. Moreover, there was no basis to assert that appli- cant had legitimate expectation that his insurer would cove ac- cident involving ATVs, as ATVs were not included under this in- sured's policy. Although ATV in Ontario is required by Ontario's Off–Road Vehicles Act to be insured under motor vehicle li- ability policy, same was not true of particular ATV in this case because it was ATV located in British Columbia. Austin Benson v. Belair In- surance Co. Inc. (2018), 2018 CarswellOnt 5476, 2018 ONSC 2297, Morawetz R.S.J., Thorburn J., and Tzimas J. (Ont. Div. Ct.); application for judicial review refused (2017), 2017 Carswel- lOnt 3134, David Evans Dir. Delegate (F.S.C.O. App.). EXTENT OF RISK (EXCLUSIONS) Miscellaneous Fortuitous was not same thing as undesired, or even unexpected Business interruption insur- ance. Insureds were members of successful baked goods busi- ness enterprise. Insureds expe- rienced business losses as result of Indian meal moth contami- nation. Various insureds went into receivership, and receiver reached settlement with insurer with respect to claims made by directly-affected insureds (DAIs). Indirectly-affected in- sureds (IAIs) had experienced losses as result of losses experi- enced by DAIs, but insurer de- nied claims of IAIs on basis that their losses were not covered by policy. IAIs brought action against insurer for damages for breach of contract of insurance. Action dismissed. Receivership of DAIs was not insured peril against which IAIs were cov- ered. Concept of fortuity was relevant to determining whether receivership of DAIs was cov- ered peril, but one could not call receivership of DAIs fortuitous since DAIs had been noncom- pliant with their obligations as borrowers. Fortuitous was not same thing as undesired, or even unexpected. Here, receivership was caused or at least materially contributed to by deliberate acts of DAIs that were contrary to obligations they owed to lender. In any event, reading policy sen- sibly, risk of receivership was not risk that could economically be transferred to insurer. Marvelous Mario's Inc. et al. v. St. Paul Fire and Ma- rine Insurance Co. (2018), 2018 CarswellOnt 5700, 2018 ONSC 1365, Akbarali J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Employer seeking reasons to justify "unofficial policy" of not paying bonus to terminated employee Employer carried on business as designer and manufacturer of conveyer and bulk material han- dling equipment. Employee was hired in 2010 as controller. Em- ployee was terminated from his position in 2016. Employee was 59 years old, and received annu- al base salary of $87,500, match- ing four percent contribution to registered pension plan (RPP) and participation in employer's benefit plan. Employee was also eligible to receive discretionary bonus. Employee alleged that in addition to his duties, obli- gations and responsibilities as controller, he also took on num- ber of human resources func- tions, and as such character of his employment was enhanced. Employer maintained functions were simply ancillary to his core duties. There was no signed em- ployment agreement. Employee brought action seeking damages for wrongful dismissal. Action granted in part. Employee was entitled to reasonable notice period of 10 months. Employee was entitled to payment of his 2016 bonus based on amount consistent with 2015 bonus; he was entitled to $20,000. Employ- er seemed to be seeking reasons to justify its "unofficial policy" of not paying out bonus to termi- nated employee. Employee was not entitled to 2017 bonus since it was not within employee's rea- sonable expectation. There were no damages for loss of benefits during notice period. Employee discharged his duty to mitigate. Fulmer v. Nordstrong Equip- ment Limited (2017), 2017 Car- swellOnt 14909, 2017 ONSC 5529, Diamond J. (Ont. S.C.J.). CASELAW

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