Diane L. Evans

The plaintiffs brought an urgent motion under Rule 44 of the Rules of Civil Procedure for the interim recovery of their personal property from the defendant moving companies.

The defendants claimed a storer's lien under the Repair and Storage Lien Act (RSLA) for unpaid moving and storage fees, relying on a contract signed on the day of the move.

The court found substantial grounds that the binding agreement was the initial quotation, not the document signed under pressure on moving day.

The court also held the RSLA did not apply as the agreement was fundamentally for moving, not storage.

The court granted the plaintiffs interim possession of their property, conditional on a net payment of $700 to account for the value of services received, less credits and costs.

Following trial, the successful plaintiff sought elevated costs on a full indemnity basis, alleging reprehensible conduct by the defendant including theft from his employer and litigation conduct that required strict proof and additional legal research.

The court held that while costs are discretionary, they must be fixed on a principled basis and guided primarily by reasonableness under Rule 57 of the Rules of Civil Procedure.

The court declined to award elevated or full indemnity costs, noting the defendant had already been sanctioned through criminal proceedings and had limited financial means.

Considering proportionality, access to justice concerns, and the modest scale of the litigation, the court fixed costs at $25,000 rather than the $44,874.55 sought.

The plaintiff employer brought a civil action against a former employee alleging conversion, fraud, and breach of fiduciary duty arising from systematic theft of store funds through manipulation of cash register void transactions.

The defendant had previously pleaded guilty to a criminal theft charge and paid partial restitution.

The court accepted the employer’s statistical analysis of business records showing excessive void transactions and found, on a balance of probabilities, that the defendant misappropriated $70,699.93.

The court further held the defendant occupied a position of trust as a night manager and therefore acted in a fiduciary capacity.

Judgment was granted for damages and a declaration that the debt arose from fraud while acting in a fiduciary capacity under the Bankruptcy and Insolvency Act and would survive bankruptcy; punitive damages were refused.

The appellants appealed a summary judgment dismissing their medical malpractice action against a doctor and hospital.

The action arose from a delayed diagnosis of testicular torsion, resulting in the removal of the affected testicle.

The motion judge found that even if the doctor had properly diagnosed the condition when he first saw the patient, there was at most a 10 per cent chance of saving the testicle.

The Court of Appeal upheld the motion judge's conclusion that the 'but for' test for causation was not met and dismissed the appeal.

The appellant's appeal under the Municipal Conflict of Interest Act was previously quashed.

The court received written submissions on costs.

The respondent sought substantial indemnity costs of $35,779.80 or partial indemnity costs of $20,534.60.

The court found no basis for substantial indemnity costs, as the appellant's dilatory conduct did not rise to the level of reprehensible conduct.

However, the respondent was entitled to costs for steps taken to move the appeal forward, including motions to expedite and dismiss for delay.

The court fixed costs at $10,000 inclusive of disbursements and HST.

Following the dismissal of the defendants' motions for leave to appeal, the plaintiffs sought costs of $8,528.20 on a partial indemnity basis.

The defendants argued the amount was excessive and suggested $2,500.

The court agreed the requested amount was excessive for a relatively uncomplicated matter, but found the defendants' suggestion too modest given counsel's experience and the importance of the motion.

The court fixed costs at $4,000 inclusive of fees, disbursements, and GST, payable within 30 days.

The defendants sought leave to appeal an interlocutory order that dismissed their motions to strike summonses to witnesses and a notice of examination.

The underlying motion was to strike the plaintiffs' statement of claim.

The defendants argued the proposed examinations were too broad and amounted to a fishing expedition.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance, as the scope of examination was properly tied to the broad issues raised in the motion to strike.

The appellants sought a stay of execution on a default judgment of approximately $57,000 that had stood unchallenged for over twelve years.

The Court of Appeal applied the RJR-MacDonald test and found no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured refusing the stay.

The appeal from the Divisional Court order was dismissed.

The appellants appealed a decision interpreting their franchise agreement with First Choice Haircutters.

The Court of Appeal upheld the motion judge's finding that the franchisor only agreed not to grant another franchise in the territory, and the contract did not provide wider protection against competition following the franchisor's acquisition by a company operating competing franchises.

The Court also agreed that the Arthur Wishart Act did not apply to the 'franchisor associate' in this case, and dismissed the appeal.

The appellant appealed a decision refusing to certify an action against an investment advisor for negligence, misrepresentation, fraud, and conspiracy as a class proceeding.

The Divisional Court dismissed the appeal, finding that the motions judge made no error in principle and correctly concluded that a class action was not the preferable procedure due to the individual issues of detrimental reliance.