Civil Litigation - Plaintiff

The plaintiffs sued the defendant home builder in negligence and nuisance after their basement flooded, causing over $65,000 in agreed damages.

The plaintiffs alleged that the defendant's construction activities on the adjacent lot obstructed a municipal drainage ditch, causing water to back up into their sump pump system and overheat the pump.

The court weighed conflicting expert evidence and preferred the defendant's expert, finding it more likely that spring runoff overwhelmed the sump pump or that the pump malfunctioned independently.

The court concluded the plaintiffs failed to prove on a balance of probabilities that the defendant's actions caused the flood, and dismissed the action.

The minor plaintiff, who had a pre-existing condition making his bones prone to fracture, was injured while attempting to board a continuously moving amusement park ride.

The plaintiffs sued the amusement park operator for negligence under the Occupiers' Liability Act.

The court found the defendant breached its duty of care by failing to post warning signs, failing to provide verbal instructions that the ride did not stop, and failing to have sufficient staff present.

The court dismissed the defendant's claims of contributory negligence against the minor and his father.

Damages were awarded to the minor plaintiff and his parents, taking into account the minor's pre-existing condition under the crumbling skull rule.

Following the dismissal of the plaintiff's defamation action after a seven-day trial, the defendants sought costs of approximately $88,000, arguing for substantial indemnity costs from the date of their Rule 49 offer to settle.

The plaintiff argued no costs should be awarded.

The court found the Rule 49 offer defective as it did not specify costs, rejecting the claim for substantial indemnity.

Applying principles of proportionality, the court awarded the defendants costs fixed at $40,000 inclusive of disbursements and taxes.

The plaintiff, a lawyer, sued Bell Canada for breach of contract and misrepresentation after Bell disconnected his telephone services.

The plaintiff alleged that Bell failed to maintain a six-month seasonal suspension of his phone number.

Bell argued that the plaintiff's account was in arrears, justifying the termination.

The court found that the plaintiff failed to prove his account was in good standing and that he had not paid the required fees.

The court also found that Bell's Terms of Service applied to the contract.

The plaintiff's claims were dismissed.

The defendant brought a motion for security for costs and a stay of previous costs orders made against him.

The plaintiff had previously obtained summary judgment for indemnification regarding an estate administration and intended to withdraw the remaining claims.

The court found that ordering security for costs would have no practical significance, as the only remaining step was the plaintiff's motion to withdraw the claim.

The court also found no reason to stay the previous costs orders.

The defendant's motions were dismissed.

The applicant purchaser and respondent vendor entered into an agreement of purchase and sale for a property intended for a townhouse development.

The agreement included a vendor take back mortgage with a clause reducing the principal amount if the number of approved units was less than the originally planned 18, subject to a $250,000 floor.

The development application faced opposition and the number of units was reduced.

The court was asked to interpret the mortgage terms.

The court found the reduction clause enforceable and not ambiguous, rejecting the vendor's argument that the entire mortgage amount was due if the original application failed.

The court held that the mortgage principal would be reduced according to the formula, subject to the $250,000 floor.

Following a judgment in favour of the plaintiff in a defamation action, the court determined the quantum of costs and pre-judgment interest.

The plaintiff sought substantial indemnity costs of approximately $121,000, while the defendant argued for partial indemnity costs of $30,000 to $40,000.

The court considered the plaintiff's offers to settle, post-judgment conduct, and the use of the simplified procedure, ultimately fixing costs at $65,000 for fees and $8,000 for disbursements.

The court also held that defamation is not a 'personal injury' for the purposes of the 5% pre-judgment interest rate under s. 128(2) of the Courts of Justice Act, and applied the default rate of 1.3%.

The plaintiffs were injured in a motor vehicle accident involving an uninsured driver.

Eighty-nine days after the accident, the plaintiffs' lawyer notified their insurer of an intent to sue under the uninsured motorist provisions.

The lawyer inadvertently failed to name the insurer as a defendant in the initial action.

The plaintiffs commenced an action against the insurer over two years after the initial notice letter.

The insurer brought a motion for summary judgment to dismiss the action as statute-barred.

The court dismissed the motion, finding that the limitation period did not begin to run when the letter was sent because there was insufficient evidence at that time to determine if the injuries met the statutory threshold under the Insurance Act.

The applicant municipality brought a motion to find the respondent corporation in contempt for demolishing a building without a permit, contrary to a prior court order.

The court found the respondent in contempt, noting the sole director's wilful blindness regarding a previously revoked permit.

The court also authorized the municipality to recover $28,381.18 in remediation expenses under the Building Code Act, granting the amount priority lien status.

Substantial indemnity costs for the contempt motion were awarded against the corporation and its director jointly and severally.

The plaintiff, having succeeded on a summary judgment motion for unpaid consulting fees, sought costs on a substantial indemnity basis due to the defendants' alleged reprehensible conduct and a time-limited offer to settle.

The court found that the defendants' conduct, including evading service and failing to make any settlement offers, was not 'reprehensible' enough to warrant punitive costs.

Furthermore, the plaintiff's time-limited offer did not attract presumptive cost consequences under Rule 49.

Applying the factors in Rule 57.01, the court awarded the plaintiff costs on a partial indemnity basis fixed at $65,000, noting the importance of fostering access to justice and the defendants' failure to provide a costs outline.

The moving party brought a motion to strike a solicitor's affidavit filed in support of an estates motion.

The moving party argued the affidavit was an improper use of a solicitor's affidavit, contained scandalous and vexatious material, and breached settlement privilege.

The court dismissed the motion, finding the affidavit was properly used to provide non-contentious background facts, did not contain scandalous material, and that any potential settlement privilege issues were too intertwined with non-privileged material to be struck at this stage.

The defendant mortgagor brought a motion to set aside a default judgment and stay a writ of possession, while the plaintiff mortgagee brought a cross-motion to determine the amount due under the mortgage following the sale of the property.

The court dismissed the motion to set aside the default judgment due to lack of evidence and delay.

The court determined the outstanding mortgage amount, including interest, penalties, and fees, finding that the defendant's failure to close an earlier sale was not solely attributable to an inaccurate discharge statement provided by the plaintiff.

The plaintiff was awarded the outstanding mortgage balance and costs on a full indemnity basis.

On an appeal in a construction lien proceeding, the court considered whether expiry of a perfected lien under s. 46(1) of the Construction Lien Act automatically required dismissal of the entire action, including joined contract claims.

The court held that s. 46(1) mandates dismissal of the action to enforce the lien, but that s. 47(1)(d) preserves discretion to dismiss or allow continuation of non-lien claims within the same action.

Applying that interpretation, the court found the Master had exercised the discretion to dismiss the whole proceeding and that, given four years of inactivity and the absence of responding evidence, there was no arguable basis to interfere.

The appeal was allowed, the Divisional Court order was set aside, and the Master's dismissal order was reinstated.

In a commercial repair dispute, the appellant challenged the trial judgment concerning three monetary amounts arising from transmission repairs and a counterclaim.

The majority held there was no reversible error, including on the principal issue of whether the respondent's failure to replace or warn about an oil cooler fell within the warranty for workmanship.

The majority concluded that the oil cooler was integral to the transmission and that the failure constituted a failure of workmanship within the warranty's ambit.

The appeal was dismissed with costs, with one judge dissenting on the interpretation and application of the warranty provision.

The appellants challenged a trial judgment requiring repayment of money advanced by the respondents for the purchase of land intended for a matrimonial home, arguing the transfer was a gift rather than a loan.

The Court of Appeal upheld the trial judge's credibility findings and conclusion that the funds were advanced as a loan repayable when the appellants became financially able to do so.

Although the trial judge had not expressly addressed when that repayment condition was satisfied in the main reasons, the appellate court relied on the later finding made in fixing pre-judgment interest and granted an amendment to the statement of claim to conform to the issue actually litigated.

The limitation defence failed because the cause of action arose only when the appellant became financially able to repay.

The appellant appealed a trial judgment awarding damages to a former chief financial officer and consultant arising from a stock option plan.

The central issue was whether a termination provision ending options when the optionee ceased to be an employee applied to a participant who was found at trial to be a consultant rather than a true employee.

The court held that, on a fair reading of the plan as a whole, the terms 'employee' and 'eligible participant' were used interchangeably, so the termination provision applied to all persons granted options under the plan.

Because the respondent did not exercise his options before ending his relationship with the company, his rights under the option agreement had terminated.

The appeal was allowed, the trial judgment was set aside, and the action was dismissed with costs.

The appellant appealed the dismissal of its negligent misrepresentation action arising from purchases of Confederation Life commercial paper through the respondent bank.

The court held that, in the context of dealings between sophisticated commercial parties, the bank's duty of care was limited to accurately supplying the specific information requested in the quoting exercise, not broader investment-related information.

The court further held that stating the D.B.R.S. rating as R1 low was not inaccurate or misleading merely because the rating had been placed under review with negative implications.

The appeal was dismissed with costs.

The appellant appealed an order striking part of its statement of claim that sought a declaration that the respondent airport authority lacked jurisdiction to impose fees and charges on airport users.

The court held it was unnecessary to resolve the pleaded delegation and Crown-operation issues because the respondent's authority arose from its leasehold interest and corporate capacity, as recognized by the applicable federal legislation and regulations.

The court further held Parliament did not intend to create a complete code restricting airport user charges to those set by ministerial regulation.

The appeal was dismissed with costs.

The appellants appealed the dismissal of their contractual claim under the S.E.F. 44 Family Protection Endorsement after they had agreed to limit recovery against the tortfeasor to the tortfeasor's policy limits.

The Court of Appeal held that, in a direct action against the insurer, the phrase 'legally entitled to recover' requires proof only that the inadequately insured motorist was at fault and that damages exceed the available limits.

The continued enforceability of the claim against the tortfeasor was held to be a non-issue, consistent with prior authority recognizing a direct contractual cause of action against the insurer.

The appeal was allowed, the Rule 21 answer was changed to 'No', and costs of the motion and appeal were awarded to the appellants.

The appellants sought to restore a motion order extending the time for service of a statement of claim issued within the limitation period but not served before the service deadline expired.

The court held that the controlling question was whether the respondent would suffer prejudice caused by the delay, and confirmed that while the onus remained on the plaintiffs, a defendant asserting prejudice had at least an evidentiary obligation to provide some particulars.

The court further held that a defendant could not manufacture prejudice by failing to take reasonable steps earlier to preserve evidence, and that prejudice unrelated to the delayed service was irrelevant.

The appeal was allowed, the Divisional Court order was set aside, and the original extension order was restored.