Charles Wagman

The tenant appellants appealed a Landlord and Tenant Board decision terminating their tenancy and awarding $20,000 in damages to the landlord following a fire.

The appellants argued errors of law regarding the cause of the fire, the validity of the N5 Form, and the damages award.

The Divisional Court found no errors of law regarding the fire's cause or the N5 Form, as these were factual findings.

While the Board may have erred by failing to consider the tenants' repair efforts and not ruling on a roofer's estimate, the Court found ample evidence supported the conclusion that damages exceeded $20,000.

The appeal was dismissed.

The appellant appealed a summary judgment order granting the respondent $45,000 plus costs.

The appellant argued there were genuine issues of material fact requiring a trial, relying on defences of gratuitous bailment and ex turpi causa.

The Divisional Court dismissed the appeal, finding the motions judge correctly applied the full appreciation test from Combined Air.

The motions judge was entitled to evaluate credibility under Rule 20.04(2.1) and properly concluded the appellant's evidence was unbelievable and full of contradictions.

The appellants appealed a decision of the Superior Court of Justice.

The Court of Appeal found that the motions judge's reasons were inadequate to determine the Limitations Act issue.

However, the Court dismissed the appeal on the basis that the action was misconceived, as it had to be brought as a derivative action and no leave was obtained.

The defendant sought costs following success on motions heard December 23, 2011.

The court found the plaintiff had brought a meritless contempt motion and failed to diligently advance the litigation.

Given the defendant’s complete success and the conduct of the moving party, the court awarded costs on a substantial-indemnity basis.

Costs were fixed in the amount of $15,377.41 all-inclusive.

The appellant appealed a motion judge's decision regarding the existence of a commission agreement.

The Court of Appeal held that, in the absence of a written commission agreement, the interpretation of email correspondence to determine if an agreement existed was a matter for the motion judge.

Finding no palpable and overriding error, the appeal was dismissed with costs.

The plaintiff consulting company sued for unpaid contingency fees under a contract to prepare and submit claims for research and development tax credits.

After an initial meeting with a CRA reviewer, the defendant company lost confidence in the plaintiff and proceeded directly with CRA without the plaintiff’s involvement, eventually receiving reduced tax credits.

The court held that the contract required the defendant to allow the plaintiff to represent it in audits and to remain involved in the claim process.

By excluding the plaintiff and continuing the claim process independently while still benefiting from the credits, the defendant breached the contract.

The plaintiff was therefore entitled to the agreed percentage fee calculated from the credits ultimately received.

The appellants appealed their convictions, challenging the admissibility of certificates and the trial judge's application of the W.(D.) framework.

The Court of Appeal dismissed the appeals, finding that the trial judge's factual findings regarding the certificates were not unreasonable and that the reasons thoroughly and correctly applied the W.(D.) principles to the facts.

The plaintiff, an 18-year employee, was terminated from his position as Service Manager but immediately offered an identical position at the same salary at a related dealership.

The plaintiff refused the offer, citing concerns about seniority and the future of the new dealership, and sued for wrongful dismissal.

The court found that the plaintiff's refusal was objectively unreasonable and that he failed to mitigate his damages.

The action was dismissed with costs awarded to the defendant.

The plaintiff brought a motion for summary judgment seeking payment of $45,000 arising from a taxi licence sale transaction handled by the defendant, a lawyer.

The defendant cross-moved for dismissal, arguing he acted as a gratuitous bailee and that the plaintiff's claim was barred by the doctrine of ex turpi causa due to alleged tax avoidance.

The court weighed credibility under Rule 20.04 of the Rules of Civil Procedure and found the defendant’s evidence unreliable while accepting the plaintiff’s account.

The court held the defendant was acting as counsel in the transaction and was obligated to account for purchase funds that he failed to remit.

The defences of bailment and illegality were rejected, and summary judgment was granted to the plaintiff.

The plaintiff brought a motion to set aside a registrar’s order dismissing the action for delay and sought return of funds held pursuant to an earlier court order.

The defendant sought dismissal of a contempt motion, termination of an ex parte injunction relating to race horses, and costs.

Applying Rule 37.14 and the contextual approach described in Reid v. Dow Corning Corp. and subsequent appellate authority, the court considered the explanation for delay, inadvertence, promptness of the motion, and prejudice.

The court found the plaintiff had persistently failed to prosecute the action and had taken virtually no litigation steps, causing prejudice to the defendant.

The motion to set aside the dismissal was refused, the contempt motion was dismissed, and the injunction was terminated.

On competing summary judgment motions, the plaintiff sought commission recovery arising from a completed sale of commercial property, while the defendant sought dismissal of the action.

The court held the record established no enforceable agreement requiring the defendant vendor to pay commission on the closed transaction, particularly given contractual terms assigning commission responsibility to the purchaser.

The court further found that, even if such an agreement could be inferred, dual agency conflict principles and inadequate disclosure would bar recovery.

Applying Rule 20 to dispose of the matter without trial, the court granted the defendant's cross-motion and dismissed the action.

The appellant massage therapist appealed a decision of the Discipline Panel finding him guilty of professional misconduct for authorizing an employee to issue false receipts.

He argued the panel erred by convicting him on a different theory of liability than advanced by the prosecutor and erred in its factual findings.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness as the appellant knew the case he had to meet, and holding that the panel's credibility findings and ultimate conclusion were reasonable.

These consolidated appeals addressed the interpretation and application of the amended summary judgment regime under Rule 20 of the Rules of Civil Procedure.

The Court of Appeal held that summary judgment may be granted not only where claims or defences are without merit or the parties agree, but also where the motion judge can achieve a full appreciation of the evidence and issues required to make dispositive findings on the motion record, possibly supplemented by limited oral evidence.

The court articulated the “full appreciation” test, confirmed that the standard of review on whether there is a genuine issue requiring a trial is correctness, and explained the proper use of the new powers to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence on discrete issues.

Applying those principles, the court dismissed the Combined Air, Misek, and Parker appeals, dismissed the Mauldin appeal, and allowed the Bruno appeal by setting aside summary judgment and dismissing the motion.

The appellants appealed the dismissal of their summary judgment motion regarding property damage allegedly caused by the negligent construction of neighbouring homes.

They argued the motions judge failed to apply the new, more flexible Rule 20 of the Rules of Civil Procedure and provided inadequate reasons.

The Divisional Court agreed the reasons were inadequate but upheld the dismissal, finding significant conflicting evidence regarding personal liability, independent contractor liability, and damages that required a trial.

The plaintiffs sought leave to appeal an order dismissing their motion for summary judgment regarding property damage caused by the defendants' construction.

The motions judge had dismissed the summary judgment motion with a one-sentence endorsement citing 'numerous conflicts in the evidence' without further explanation.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order due to the inadequacy of the reasons provided and the failure to apply the newly amended Rule 20 for summary judgments.

The moving parties sought leave to appeal an order dismissing their motion to compel the responding parties to deliver a further and better Affidavit of Documents.

The motion judge had found no need for the order because the moving parties' lawyers already had access to the documents through a related proceeding involving the same responding parties.

The Divisional Court dismissed the motion for leave to appeal, finding the motion judge's decision was a practical solution to a unique factual matrix and did not raise matters of general or public importance.

The plaintiff sought leave to appeal an order dismissing its motion to compel the defendant to deliver a further and better Affidavit of Documents.

The plaintiff argued the order conflicted with case law and misapprehended the nature of Anton Piller orders.

The Divisional Court dismissed the motion, finding the motion judge's decision was discretionary, turned on the specific facts of the case, and did not involve matters of general public importance.

The court noted the plaintiff already had access to the documents in question and was arguably in a better position to list them.

The appellant appealed a decision of the motion judge granting summary judgment and dismissing the action.

The Court of Appeal found no error in the motion judge's decision and dismissed the appeal, awarding costs to the respondent in the amount of $6,000.

Following the dismissal of the defendants' motion for leave to appeal an order refusing to remove the plaintiff's litigation guardian, the court received written submissions on costs.

The successful plaintiff sought costs on a substantial indemnity basis, while the defendants argued for a lower partial indemnity amount.

The court fixed the plaintiff's costs at $7,826.83 inclusive of GST and disbursements, finding the amount fair and reasonable given the history and circumstances of the litigation.

The appellant wife appealed an order directing an interim payment of $350,000 to the respondent husband.

The respondent brought a motion to quash the appeal for want of jurisdiction.

The Court of Appeal held that the motion judge's order did not settle any substantive rights between the parties and was therefore interlocutory in nature.

As a result, the court lacked jurisdiction to entertain the appeal, and the appeal was quashed.