John Sebastian Winny

The plaintiff applied for leave to appeal a decision setting aside a default judgment and a vesting order.

The plaintiff argued there was a denial of procedural fairness because the motion judge did not hear oral argument on setting aside the default judgment, and that the decision conflicted with established case law regarding vesting orders under the Land Titles Act.

The Divisional Court denied leave, finding no breach of fundamental fairness given the full written arguments submitted, no good reason to doubt the correctness of the decision, and no conflicting decision as the plaintiff was not an innocent third party.

The appellants appealed a trial management order in a child protection proceeding.

The Court of Appeal dismissed the appeal, finding no error in the exercise of discretion.

The Court clarified that the statutory requirement for a child to be 'brought before the court' does not mandate physical presence in the courtroom, and confirmed that the governing legislation permits a bifurcated, non-continuous hearing.

The appellants appealed a trial judgment finding them liable under s. 50 of the Commercial Tenancies Act for the fraudulent removal of goods to defeat the respondent landlord's claim for rent arrears.

The trial judge awarded double the value of the removed goods, damages for the vacated premises, and solicitor-client costs.

The Court of Appeal dismissed the appeal, finding sufficient circumstantial evidence to support the trial judge's findings of responsibility and fraudulent intent, and no basis to interfere with the damages or costs awards.

The appellants appealed a decision of the Licence Appeal Tribunal directing the revocation of their motor vehicle inspection station and mechanic's licences.

The Director alleged that false statements were made in numerous safety standards certificates and that inspections were incompetently performed.

The Divisional Court dismissed the appeal, finding that the evidence accepted by the Tribunal provided clear and cogent proof to support the Director's proposed action.

The appellants appealed a trial judge's finding that they failed to meet the standard of care regarding the design of a carbonated beverage in a glass container.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions were well supported by evidence that the product was dangerous and the manufacturer failed to take steps to reduce the risk of explosion.

A cross-appeal seeking to vary the apportionment of negligence was also dismissed, as it did not meet the threshold of a very strong and exceptional case.

The plaintiff was involved in a motor vehicle accident and commenced an action without complying with the defendant insurer's request for a Functional Capacities Assessment under s. 258.3(1)(d) of the Insurance Act.

The defendant successfully moved for an order compelling the plaintiff to submit to the examination.

The plaintiff appealed, arguing the court lacked jurisdiction to order compliance and was restricted to considering non-compliance in awarding costs under s. 258.3(9).

The Divisional Court dismissed the appeal, holding that the court retains discretion to order compliance to further the legislative objective of facilitating early settlement.

The appellant solicitor appealed the dismissal of his third party claim for contribution against real estate agents in a negligence action arising from a commercial property purchase involving false zoning representations.

The court held, by majority, that issue estoppel did not apply because the prior mortgage proceeding did not determine the agents' independent liability to the purchaser.

However, the majority concluded that the third party claim was an abuse of process because it effectively attempted to relitigate the same misrepresentation issue that could have been advanced in the earlier proceeding.

The dissent would have allowed the appeal on the basis that the agents' duty of care had never previously been litigated.

The estate appealed a ruling that the discoverability principle applied to the two-year limitation period in s. 38(3) of the Trustee Act for tort claims against estates.

The underlying negligence action arose from a motor vehicle accident in which the alleged tortfeasor died, and the plaintiff commenced the action almost five years later, asserting late discovery that the injuries met the statutory threshold under the Insurance Act.

The Court of Appeal held that the discoverability rule is only a rule of construction and does not apply where the limitation runs from a fixed event unrelated to the claimant's knowledge.

Because s. 38(3) runs from the death of the deceased, the claim was barred unless brought within two years of death.

The appeal was allowed, and the cross-appeal on costs was dismissed.