Gavin J. Tighe

Following a successful application contesting a federal election in which the court declared the election null and void due to voting irregularities, the applicant sought $90,000 in costs.

The court considered whether any respondent could properly be characterized as an unsuccessful party responsible for paying those costs.

The successful candidate was found to have done nothing wrong and stood in a similar position to the applicant, while the Chief Electoral Officer maintained neutrality and could not legally take positions favouring any candidate.

Given the public interest nature of the proceeding and the absence of a party properly liable for costs, the court declined to award costs.

Each party was ordered to bear its own costs, and the applicant’s security for costs deposit was ordered returned.

The applicant, an unsuccessful candidate in a federal election decided by a plurality of 26 votes, brought an application to contest the election under s. 524(1)(b) of the Canada Elections Act.

The applicant argued that irregularities in voter registration and vouching affected the result.

The court found that the onus was on the applicant to prove on a balance of probabilities that irregularities occurred and affected the result.

The court identified 79 votes that were cast irregularly due to failures in registration and vouching procedures.

Because the number of irregular votes exceeded the plurality, the court declared the election null and void.

The plaintiffs and a co-defendant brought a motion for partial summary judgment seeking a declaration that losses arising from the collapse of a basement wall were covered under a title insurance policy.

The insurer argued the policy was void due to a material misrepresentation in the insurance application concerning the nature of the dwelling, which was described as a single-family residence despite being used as a multi-unit property.

The court held that there were genuine issues requiring a trial, including whether the misrepresentation was material to the risk and whether the insurer would have issued the same policy had it known the true facts.

The applicants also argued that the insurer had effectively accepted coverage through prior correspondence, but the court found that the evidence surrounding the letter raised factual issues unsuitable for summary judgment.

The motion for partial summary judgment was dismissed.

The appellant appealed a decision striking its pleading.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the pleading was beyond repair.

The appellant failed to plead that the respondents joined with the original tortfeasor to continue a false publication, and the respondents' alleged failure to stop the falsehood did not make them joint tortfeasors.

The appellants' action was dismissed by a motion judge because they were two days late in paying an $8,000 costs award mandated by a peremptory scheduling order.

The appellants appealed the dismissal.

The Court of Appeal allowed the appeal, finding that the motion judge exercised her discretion unreasonably by failing to consider the justice of the case, the lack of prejudice to the respondents, and the minor nature of the breach.

The Court extended the time for compliance and reinstated the action.

The appellant, a law clerk, appealed a summary judgment dismissing his fourth party claim against a former articling student/associate for contribution and indemnity in a solicitor negligence action.

The Court of Appeal upheld the dismissal, agreeing the claim was misconceived as the principal solicitor was responsible for the associate's actions.

However, the Court allowed the appeal on costs, reducing the substantial indemnity costs award from $25,000 to $17,000, finding the appellant's counsel did not mislead the court and the allegations in the pleadings were not entirely irrelevant.

The appellant appealed a summary judgment granted to his former employer for amounts due on two loans.

The appellant argued his termination was in bad faith to appropriate his book of business, but the court found no evidence to raise a triable issue, noting he committed a clear breach of corporate policy.

The Court of Appeal also upheld the motion judge's discretionary decisions denying equitable set-off and a stay pending the resolution of the counterclaim.

The appeal was dismissed with costs.

The appellant appealed a trial judgment regarding an easement claim based on the doctrine of Lost Modern Grant.

The appellant argued the trial judge erred in limiting the relevant 20-year period to the time before the property's conversion to the Land Titles system in 2001.

The Court of Appeal agreed the trial judge erred in law but found the error did not result in a substantial wrong or miscarriage of justice.

The sole witness relied upon by the appellant was deemed unreliable, and the evidence was insufficient to establish the required 20 years of open and continuous use.

The appeal was dismissed.

The appellant appealed the dismissal of her action against the respondents.

The motion judge had dismissed the action as an abuse of process and found no genuine issue for trial, as the underlying issue of forged guarantees had already been adjudicated in a previous action.

The appellant argued she was denied natural justice because the motion judge proceeded in her absence after she left the courtroom.

The Court of Appeal dismissed the appeal, finding no apprehension of bias, agreeing that the action was an abuse of process, and upholding the substantial indemnity costs awarded by the motion judge due to the serious allegations of dishonesty.

The appellants appealed a trial judgment dismissing their claim for conveyance of lands and granting the respondent's counterclaim for occupation rent based on unjust enrichment, trespass, and registering a certificate of pending litigation without a reasonable claim.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to allow the appellants to discontinue their action on the first day of trial, her decision to allow post-trial pleading amendments, or her assessment of damages for trespass and the aborted sale.

The appellant, a self-represented litigant assisted by an agent, appealed the dismissal of her Small Claims Court action against her brokerage firm regarding a margin call.

The Divisional Court allowed the appeal and ordered a new trial, finding that the trial judge's constant interventions, antagonistic attitude toward the agent, refusal to permit cross-examination of adverse witnesses, and premature declaration of a non-suit without hearing submissions deprived the appellant of a fair trial.

The appellant, a self-employed lawyer, filed a proposal to his creditors under the Bankruptcy and Insolvency Act which was accepted.

Following the proposal, he made income tax installment payments to the CCRA for the 1999 taxation year and subsequently claimed a refund.

The CCRA prorated the installments over the entire year and applied a portion to his pre-proposal tax debt.

The Court of Appeal held that the CCRA had no legal basis to apply post-proposal installment payments to pre-proposal tax debt, as this would allow the CCRA to recover its pre-proposal claim at 100 cents on the dollar contrary to the terms of the proposal.

The appeal was allowed and the CCRA was ordered to pay the refund.

The appellant, a self-employed lawyer, filed a proposal to creditors under the Bankruptcy and Insolvency Act.

The Canada Customs and Revenue Agency (CCRA) was an unsecured creditor for unpaid income tax.

After the proposal date, the appellant made installment payments for his current-year tax obligations and subsequently claimed a tax refund.

The CCRA prorated the installment payments over the entire year, applying a portion to the pre-proposal tax debt, which eliminated the refund.

The Court of Appeal held that the CCRA had no statutory basis to apply post-proposal installment payments to pre-proposal tax liability, as doing so would allow the CCRA to recover more than its pro rata share under the proposal.

The appeal was allowed and the CCRA was ordered to pay the refund.

The appellant employer appealed a trial judgment awarding damages for constructive dismissal to the respondent employee and dismissing the employer's counterclaim.

The appellant argued that the trial judge's numerous interjections and premature comments on the merits of the case prevented a fair presentation of its defence and counterclaim.

The Court of Appeal agreed, finding that the trial judge's conduct gave rise to a reasonable apprehension of bias.

The appeal was allowed, the judgment set aside, and a new trial ordered.

The appellant developer appealed a judgment granting specific performance of an agreement of purchase and sale for a residential condominium unit.

The application judge had found the developer breached the agreement by improperly setting confirmed occupancy dates and terminating the agreement due to delay.

The Court of Appeal held that the application judge erred in interpreting the agreement and in making factual findings based on inference without a trial.

The judgment was set aside, and the application was converted into an action to proceed to trial on the disputed factual issues.

The cross-appellant elector appealed a judgment under the Municipal Conflict of Interest Act, seeking to introduce fresh evidence that the respondent mayor owned additional properties near a proposed highway extension.

The Divisional Court held that the normal test for fresh evidence is modified by s. 11(2) of the Act, which allows a new trial before the same judge to take additional evidence if it might have affected the initial disposition.

The appeal was allowed and the matter remitted to the trial judge to reconsider the judgment in light of the fresh evidence.

The cross-appellant, an elector, appealed a judgment that found the respondent mayor breached the Municipal Conflict of Interest Act but excused the breach as an error in judgment.

The cross-appellant sought to introduce fresh evidence on appeal showing the mayor had interests in other properties affected by the highway extension vote.

The Divisional Court modified the traditional test for fresh evidence due to the unique powers under s. 11(2) of the Act, admitted the evidence, and remitted the matter to the trial judge for reconsideration.