Civil Litigation - Defendant

The applicant, Harmur Investments Limited, sought a vesting order declaring that it had acquired, through adverse possession, title to two parcels of land in the Township of Greater Madawaska.

The court found that Harmur had not acquired title to the parcel known as "the Triangle" but had acquired title to the parcel known as "the Boathouse Parcel." The decision provides a detailed analysis of the requirements for adverse possession under Ontario law, including the necessity of actual possession, intention to exclude, and effective exclusion of the true owner.

An insurance company appealed a decision denying its application for a declaration that it was not obligated to defend or indemnify a policyholder in a negligence action arising from a dirt bike accident.

The insurer had appointed counsel and defended the action for approximately 10 months before denying coverage based on policy exemptions for unregistered vehicles and vehicles used without consent.

The application judge found the insurer was estopped from denying coverage and refusing to defend.

The Court of Appeal upheld this decision, finding no error in the application judge's finding of detrimental reliance and estoppel based on the insurer's conduct in defending the action without securing a non-waiver agreement or reservation of rights letter.

The appellant sought to set aside a decision of the Court of Appeal pursuant to Rule 37.14(b) on the grounds that he did not receive notice of the hearing.

The court found that the appellant failed to prove that his non-attendance was the result of accident or mistake.

Multiple notices of the hearing date were sent to the appellant's provided residence address, by courier, and by email.

The appellant had a history of delay and had previously made false claims about not receiving documents.

The motion was denied and costs were awarded to the respondent.

The appellant, TD Home and Auto Insurance Company, appealed a motion judge's decision granting summary judgment dismissing the plaintiffs' action against the vehicle owner and granting a rule 21 motion determining that a passenger was not entitled to indemnity under the owner's insurance policy.

The passenger had seized control of the vehicle's steering wheel during an argument, causing a collision that injured one of the plaintiffs.

The Court of Appeal dismissed the rule 20 appeal, finding no error in the motion judge's conclusion that the vehicle owner was not negligent and was not vicariously liable under the Highway Traffic Act because the passenger took control of the vehicle without consent.

However, the Court allowed the rule 21 appeal, setting aside the determination regarding insurance coverage due to insufficient reasoning and procedural defects.

The Court reduced the costs award accordingly.

The respondents brought a motion to quash an appeal from orders dissolving an interlocutory injunction and dismissing a contempt motion.

The Court of Appeal granted the motion to quash, finding that the orders were interlocutory in nature and therefore the proper appeal route was by leave to the Divisional Court, not direct appeal to the Court of Appeal.

Costs were awarded to the moving party.

The appellant appealed a motion judge's decision dismissing his motion for a declaration that the respondent insurer had a duty to defend him against his daughter's negligent parenting claim.

The appellant was an occupant of a vehicle driven by an impaired driver at the time of the alleged injury.

The Court of Appeal held that the appellant was not covered under the automobile insurance policy because his liability did not arise from the use or operation of the automobile, but rather from his parenting decisions.

The plain language of section 239(1)(a) of the Insurance Act requires that an occupant's liability must arise from the use or operation of the automobile to be covered.

A landlord leased commercial property to a tenant who operated a contracting business.

The tenant modified the property by dumping landfill in a regulated flood plain without proper authorization, leading to environmental remediation orders.

The landlord and tenant had an oral agreement whereby the tenant would pay rezoning costs and complete required site plan modifications.

When the tenant failed to complete remediation work and the relationship broke down, the landlord terminated the lease and seized the tenant's commercial equipment on the property.

The landlord sued for unpaid rent and property damage; the tenant counterclaimed for conversion of the seized chattels and lost business income.

The trial judge awarded damages to both parties and set them off.

Both parties appealed on liability and damages.

This is a case management decision in an estates matter concerning the estate of Terrence Blanks, providing directions on several outstanding issues.

The court addressed the removal of estate trustees, the disposition of estate chattels (Rolex watch and ring), the management of a lawyer's trust account and associated fees, and the procedural timetable for various claims including debts, trustee compensation, and occupation rent.

The court ordered a process for sealed bids on chattels, deferred a decision on the lawyer's account pending disclosure, directed the lawyer to pay trust funds into court, set a detailed schedule for particulars and production for future trial issues, and approved interim disbursements of $25,000 to each beneficiary.

The defendants, Lakehead University and Gordon Hayman, brought a motion to strike the plaintiff's statement of claim without leave to amend.

The plaintiff, a PhD graduate, sued the university and his professor for breach of contract and negligence, alleging unreasonable delays in dissertation review.

The court granted the motion, striking the claim without leave to amend, on the basis that disputes between students and universities regarding academic matters are not subject to breach of contract or tort claims.

The defendant Jamie Macari moved for an order compelling the plaintiff to undergo two independent medical examinations (IMEs) and to pay a late cancellation fee for a missed appointment.

The plaintiff sought additional conditions for the IMEs, specifically regarding "ghost writing" of expert reports, and opposed paying the cancellation fee.

The court allowed the defendant's motion in part, imposing modified conditions for the IMEs to ensure expert reports are solely authored by the examining doctor and are compliant with Rules 33.06 and 53.03(2.1), and ordered the plaintiff to pay a reduced portion of the cancellation fee.

The defendant sought leave to amend pleadings to introduce new claims, including for unpaid wages, and to particularize existing claims, despite the advanced stage of litigation.

The plaintiff opposed, citing abuse of process, potential delay, and limitation period issues for the new claims.

The court granted leave, noting that the core claim for statutory entitlements had been present since the initial pleadings and that the plaintiff had not demonstrated non-compensable prejudice.

The decision allowed the plaintiff to plead limitation periods as a defence and proposed terms, including the potential severance of the counterclaim, to mitigate trial delays.

The respondent, Old Republic Insurance Company of Canada, brought a motion for leave to deliver an amended factum to withdraw an admission of liability coverage made in its original factum.

The applicant, Coast Capital Equipment Finance Ltd., opposed the motion, arguing prejudice.

The court granted the motion, finding that the interests of justice dictate deciding the underlying application on its merits, not on a solicitor's error, and that the prejudice to the applicant was not so great as to dismiss the motion, especially given prior costs awards.

The defendant in a civil action for sexual assault brought a motion seeking a declaration that he had not breached the deemed undertaking rule (Rule 30.1.01) or, alternatively, an order to exempt certain documents from it.

The defendant's civil counsel had provided the plaintiff's compelled documentary productions, including sensitive medical and counselling records, to his criminal defence counsel for use in parallel criminal proceedings to impeach the plaintiff's credibility, without prior notice or court directions.

The court dismissed the motion, holding that the impeachment exception in Rule 30.1.01(6) is not automatic and requires parties to seek directions from the civil court, ordinarily on notice to the producing party, before using discovery evidence for impeachment in another proceeding.

The court found that the defendant had breached the deemed undertaking.

The court, on its own initiative following a defendant's request, considered dismissing the plaintiff's action as frivolous, vexatious, or an abuse of process under Rule 2.1.01.

The plaintiff's claim included allegations of racism, defamation, and harassment, along with gratuitous details about the defendant's personal life.

The court noted the plaintiff had previously been declared a vexatious litigant in family law matters.

Applying the robust interpretation of Rule 2.1, the court found the claim appeared frivolous, vexatious, or an abuse of process on its face.

The court directed the registrar to issue a notice to the plaintiff regarding the potential dismissal and stayed the action pending the outcome of the written hearing.

This costs endorsement followed a motion where the applicants' initial application was converted to an action, which they subsequently did not pursue.

The respondents sought costs for the motion.

The court determined that the applicants were not public interest litigants, as their claims were personal and pecuniary.

Consequently, the applicants were ordered to pay partial costs to the various respondents, reflecting the respondents' ultimate success in concluding the litigation, albeit not on the exact grounds initially pleaded.

The applicant, Tibbett & Britten Group Canada Inc., sought costs on a full indemnity basis after being successful in a prior application.

The court determined that the original agreement providing for full indemnity costs was spent and a new agreement, lacking such a provision, governed.

Consequently, the applicant was awarded costs on a partial indemnity basis.

The court also denied the applicant's claim for costs related to an FSCO investigation, characterizing them as potential damages rather than costs of the proceeding.

Additionally, certain disbursements for file review and irrelevant legal research were disallowed.

The respondent's request for costs for having to respond to the applicant's costs submissions was denied as there were legitimate issues to be determined.

Following dismissal of an application seeking declaratory relief regarding control and management of church congregation property and governance, the court determined costs.

The unsuccessful applicants argued no costs should be awarded due to alleged public importance, novelty, and the charitable nature of the dispute within a religious organization.

The court rejected these arguments and held that ordinary costs principles apply, emphasizing success as the primary factor under Rule 57.01 of the Rules of Civil Procedure.

Although the respondents had made a Rule 49 offer to settle, the court declined to award substantial indemnity costs because the declaratory nature of the relief made comparison with the offer impracticable.

Costs were therefore awarded to the respondents on a partial indemnity basis.

The defendants brought a summary judgment motion seeking dismissal of a commercial action alleging defective raw materials supplied for thermoplastic piping systems.

They argued the claims under an earlier supply agreement were barred by the Limitations Act and that liability disclaimers in later agreements excluded all contractual and tort liability.

The court held the limitation period for the indemnity claim had not expired because the claim arose only after the plaintiff was served with underlying litigation relating to the alleged defects.

While the contractual disclaimers were sufficient to exclude liability for negligence, they did not clearly exclude the statutorily implied condition of fitness for purpose under the Sale of Goods Act.

The court also found that alleged post‑contractual conduct potentially modifying the agreements raised a genuine issue requiring a trial.

Summary judgment was therefore refused and the action allowed to proceed.

Following a wrongful dismissal action in which the plaintiff recovered $12,514, the plaintiff sought costs exceeding $21,000.

The amount awarded fell well within the monetary jurisdiction of the Small Claims Court.

The court considered Rule 57.05(1) of the Rules of Civil Procedure, which permits a denial of costs where a plaintiff recovers an amount within the Small Claims Court jurisdiction.

The court held that the policy underlying the rule applied even though the action was commenced before the jurisdictional limit increased.

As the claim clearly could have been pursued in Small Claims Court and no exceptional circumstances justified Superior Court proceedings, the court declined to award costs.

Following an earlier ruling granting a motion removing the plaintiff’s lawyers of record, the moving defendants sought a costs award.

The motion had involved the issue of whether counsel could continue acting where a former client might become a witness for the opposing party.

The court noted the ruling depended on the likelihood that a particular individual would testify at trial, a matter that remained uncertain.

Given the unusual circumstances and the possibility that the witness might not ultimately be called, the court held it would be inappropriate to fix costs or determine responsibility for them.

Costs were therefore reserved to the trial judge.