David A. Brooker

The appellant appealed an order of the Superior Court of Justice dated October 13, 2015.

The Court of Appeal found that the judge below articulated the correct legal principles and made findings of fact and mixed fact and law that were fully supported by the record.

The court was not persuaded by the appellant's arguments and dismissed the appeal.

The respondent was awarded costs in the amount of $9,000, to be deducted from the appellant's entitlement to funds held in trust by respondent's counsel.

This costs endorsement addressed whether successful moving parties could recover costs against a self-represented plaintiff who was a minor and therefore a party under disability when two motions were argued.

The court reviewed the historical practice under the Rules of Civil Procedure requiring minors to litigate through litigation guardians and noted that costs are generally borne by the litigation guardian or, in some cases, counsel, not by the minor personally.

The court held that a party who lacks legal capacity to commence or defend proceedings should not be held personally liable for costs arising from those proceedings.

No order for costs was made in favour of the defendants.

The appellant commenced an action in 1998 relating to a property transaction in Venezuela.

By 2014, the action had not proceeded to trial.

The motion judge dismissed the action for delay, finding the 16-year delay to be inordinate, inexcusable, and prejudicial, particularly given that two principal defendants had died.

The Court of Appeal upheld the dismissal, agreeing that the delay met the test for dismissal and that the civil justice system will no longer tolerate such inordinate and inexplicable delay.

The appeal was dismissed with costs.

The moving defendants brought a motion to dismiss the plaintiff's action for delay.

The action, commenced in 1998, alleged a fraudulent conveyance of property in Venezuela.

Over 16 years, the plaintiff failed to answer undertakings, delayed serving expert reports, and failed to set the matter down for trial in a timely manner.

During this time, two key defendants died and another suffered serious health issues.

The court found the delay to be inordinate and inexcusable, and that the defendants suffered actual prejudice.

The motion was granted and the action was dismissed against the moving defendants.

The plaintiff farmer raised wild boars and was told by the defendant City to remove them or face charges under an exotic animal by-law.

The plaintiff removed the boars, suffering financial loss, and was subsequently charged, though the charges were later withdrawn.

The plaintiff sued the City in negligence, arguing it failed to consider whether his operation was a 'normal farm practice' exempt from municipal by-laws under the Farming and Food Production Protection Act.

The City appealed the dismissal of its motion to strike the negligence claim.

The Divisional Court dismissed the appeal, finding it was not plain and obvious that the City did not owe a statutory or common law duty of care to the plaintiff.

The appellants (tenants) appealed a Small Claims Court judgment ordering them to pay unpaid rent and utility costs to the respondent (landlord).

The appellants argued that an oral agreement existed wherein utilities were included in the rent, and that the trial judge erred in applying the parol evidence rule.

The Divisional Court dismissed the appeal, finding that the written lease clearly and unambiguously required the tenants to pay for propane and electrical charges, and that the trial judge made no palpable and overriding error.

The appellants appealed an order of the Superior Court of Justice regarding a confidentiality regime in Advocis disciplinary proceedings.

The Court of Appeal varied the order to hold the parties to their undertaking to be bound by the confidentiality regime, subject to specific exclusions defined in their agreement.

Costs of $2,500 were awarded to the appellants.

The appellant mortgage broker appealed the trial judge's dismissal of its action against the respondents for unpaid commissions.

The appellant argued the respondents should be liable for breach of contract, oppression, or as principals by piercing the corporate veil.

The respondents cross-appealed the trial judge's refusal to award them costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to pierce the corporate veil or find oppression in what was an ordinary breach of contract by the corporate defendant.

The cross-appeal was also dismissed, as the trial judge's decision to deprive the successful respondents of costs due to their borderline dishonest conduct was justified.

The appellant defaulted on a mortgage and challenged the inclusion of a three-month interest pre-payment penalty in the redemption amount.

He also moved to set aside a registrar's order striking his appeal, arguing the registrar was not bilingual as required for a bilingual proceeding under s. 126 of the Courts of Justice Act.

The Court of Appeal dismissed the appeal regarding the pre-payment penalty due to an incomplete record.

While the Court agreed the registrar's hearing breached the appellant's substantive right to a bilingual proceeding, it declined to set aside the order because the underlying appeal was moot, as the mortgage had already been redeemed.

The appellant defaulted on a mortgage, leading the respondents to issue a notice of sale.

The appellant challenged the redemption amount, specifically a three-month interest prepayment penalty, and appealed the motion judge's order.

The appellant also sought to set aside a registrar's order dismissing a related appeal, arguing the registrar was not bilingual as required by the Courts of Justice Act.

The Court of Appeal dismissed the appeal regarding the prepayment penalty, found the bilingual rights issue moot because the mortgage had already been redeemed, and declined to determine the final redemption amount, leaving it to the master.

The moving party, a self-represented mortgagor, sought leave to appeal an order quashing his appeal to the Divisional Court regarding the amount required to redeem a mortgage.

The Court of Appeal agreed the appeal to the Divisional Court was properly quashed because the original order was final, meaning the appeal lay to the Court of Appeal as of right.

Recognizing the moving party's consistent intention to appeal the substance of the original order, the Court treated the motion as one for an extension of time to appeal and granted it.

The Court directed written submissions on the merits of the appeal concerning a disputed prepayment fee.

The self-represented applicant brought a motion for leave to appeal an order of the Divisional Court that quashed his appeal of an order fixing mortgage arrears.

The Court of Appeal agreed the Divisional Court appeal was properly quashed because the original order was final, not interlocutory.

However, recognizing the applicant's consistent intention to appeal the merits of the original order, the Court treated the motion as one for an extension of time to appeal the original order and granted the extension.

The Court directed written submissions on the specific issue of a prepayment penalty.

The mortgagees brought a motion to quash the mortgagor's appeal of an order fixing the amount required to redeem the mortgage.

The Divisional Court held that the underlying order was interlocutory, as it determined a procedural question rather than the substantive merits of the action.

Because the mortgagor had not obtained leave to appeal the interlocutory order as required by section 19(1)(b) of the Courts of Justice Act, the appeal was quashed.

The court granted the mortgagor a brief extension to move for leave to appeal.