John Sebastian Winny

This case involved a protracted neighbourhood dispute between two families, the Roberts (plaintiffs) and the Assis/Buitendyks (defendants), concerning issues such as tree removal, alleged trespasses, surveillance cameras, bright lights, loud music, and verbal altercations.

The plaintiffs sought damages for trespass, invasion of privacy, nuisance, and abuse of process related to a peace bond application.

The court found that the plaintiffs' claims for tree removal and most alleged trespasses were not substantiated or were petty.

Claims for invasion of privacy due to surveillance cameras were dismissed as police found no concerns and no credible audio surveillance evidence existed.

Nuisance claims regarding lights, music, and hockey pucks were dismissed due to lack of communication from plaintiffs and insufficient severity.

The abuse of process claim regarding the peace bond was also dismissed, as the defendants genuinely felt threatened and followed a legal process.

The court emphasized the immaturity of both parties and the failure to pursue mediation.

All plaintiffs' claims were dismissed.

The defendant insurer brought a motion to have the quantum of the plaintiff's property loss claim determined by the appraisal process under the Insurance Act, rather than by the court.

The plaintiff opposed, arguing the request was too late and would improperly bifurcate the trial, as the action also included claims for bad faith and punitive damages.

The court granted the motion in part, holding that the appraisal process is mandatory under the Insurance Act for determining the quantum of loss, regardless of the delay or the presence of other claims in the action.

The claims for recovery under the policy were stayed pending the appraisal.

The plaintiff, T.I., brought an action against Velibor Boro Lakovic and United Taxi Limited for damages arising from an alleged sexual assault by Lakovic, a taxi driver.

United Taxi brought a motion for summary judgment to dismiss the action against it, arguing no genuine issue for trial regarding direct negligence, breach of fiduciary duty, or vicarious liability.

T.I. brought a cross-motion for leave to amend her Statement of Claim to add Dusan Tosic, the owner of the taxi, as a defendant.

The court granted United Taxi's motion for summary judgment, finding no basis for liability against it, particularly regarding vicarious liability as the alleged assault was a random act not strongly connected to United Taxi's enterprise.

The court also granted T.I.'s motion to add Dusan Tosic as a defendant, finding the proposed claims tenable and not an abuse of process.

Purchasers repudiated an agreement of purchase and sale for a newly constructed custom home before completion and sought return of their deposit.

The vendor builder accepted the repudiation, completed construction with design changes, and later sold the property to another purchaser at a lower price after a lengthy marketing period.

The court held that damages for breach of contract are determined using the expectation measure, placing the innocent party in the position it would have occupied had the contract been performed.

The purchasers failed to prove that the builder acted unreasonably in mitigating its losses by completing construction and marketing the home.

Judgment was granted on the builder’s counterclaim for damages including carrying costs, financing costs, commission, and price differential.

The appellants appealed the dismissal of their action on a summary judgment motion, arguing the motion judge erred in refusing to further adjourn the hearing.

The Court of Appeal dismissed the appeal, finding that the refusal to adjourn was a reasonable exercise of discretion given the history of the claim and a previous adjournment granted at the appellants' request.

The action was properly dismissed under Rule 20.

Following a wrongful dismissal judgment, the court released an addendum correcting the pre-judgment interest rate from the post-judgment rate to the proper statutory pre-judgment rate under the Courts of Justice Act.

On costs, the successful plaintiff sought substantial indemnity costs based on offers to settle, but the court held rule 49.10 was not triggered because the judgment was not as favourable as the operative offer.

The court nevertheless considered the offers under rule 49.13, but reduced costs to reflect the plaintiff's unsuccessful assault, human rights, punitive, and aggravated damages claims and to disallow certain disbursements.

Partial indemnity costs of $24,053.70 were awarded against one defendant only, with no costs for or against the bankrupt individual defendant.

The plaintiff brought a motion for leave to amend its statement of claim after the action had already been set down for trial.

The proposed amendments added specific legal characterizations of alleged wrongdoing, including fraudulent or negligent misrepresentation, deceit, intentional interference with economic relations, and unjust enrichment, and also sought additional remedies such as disgorgement of profits.

The court held that Rule 26.01 of the Rules of Civil Procedure permits amendments at any stage of the proceeding unless non-compensable prejudice would result.

The amendments did not introduce new causes of action but merely particularized existing allegations and clarified available remedies arising from the same factual matrix.

As no non-compensable prejudice would arise, leave to amend was granted.

The appellants appealed an order regarding the assessment of solicitor accounts under the Solicitors Act.

The Court of Appeal dismissed the appeal, finding that the authorization and direction signed by the appellants precluded them from disputing the respondent's right to assess all the accounts in issue.

Costs were awarded to the respondent in the amount of $2,500.

The appellants appealed a trial decision awarding the plaintiffs $20,000 for a purchaser's lien and dismissing their counterclaim and crossclaims, as well as the subsequent costs awards.

The appellants argued the $20,000 award constituted double recovery because the plaintiffs had previously settled with other defendants for $400,000.

The Divisional Court dismissed the appeal, finding no double recovery because the purchaser's lien claim was only advanced against the appellants.

The court also found no error in principle in the trial judge's discretionary costs awards.

The respondent brought a motion for contempt against the applicant for refusing to share transportation for access visits as required by an order dated July 18, 2013.

The applicant brought a cross-motion to strike paragraph 12 of that order, claiming it had been included by mistake.

The court dismissed the contempt motion, finding the applicant had not wilfully disobeyed a court order, and granted the motion to strike the transportation provision.

The court also addressed a subsequent motion regarding the applicant's travel to Florida for American Thanksgiving, and considered whether costs should be awarded against respondent's counsel personally for failing to appear at the November 13 hearing.

The moving parties sought an extension of time to serve a Notice of Appeal from an order dismissing their motion to set aside an order for the assessment of the respondent's bills under the Solicitors Act.

The moving parties had mistakenly sought leave to appeal in the Divisional Court.

The Court of Appeal applied the five-factor test for extending time and found that the intention to appeal was formed in time, the delay was explained, and there was no prejudice.

Despite concerns about a conflict of interest involving the moving parties' counsel, the court found an arguable legal issue regarding the interpretation of an Associate Agreement and granted a 15-day extension.

Following a motion in which the plaintiff unsuccessfully sought to add a non-party individual as a defendant and obtain immediate judgment against him, the court determined the appropriate costs disposition.

The non-party sought substantial indemnity costs, arguing the motion was ill-conceived and lacked a pleaded claim.

The court held that although the motion lacked merit, the circumstances did not justify substantial indemnity costs.

Partial indemnity costs were awarded to the non-party, payable by the plaintiff, while the plaintiff was separately awarded substantial indemnity costs against the corporate defendant after succeeding on a summary judgment motion following the defendant being noted in default.

The respondent employee was laid off for a cumulative duration of 35 weeks within a 52-week period.

Upon reaching this statutory maximum under the Employment Standards Act, 2000, the employee brought a claim for common law damages for wrongful dismissal.

The employer appealed the trial judge's award of damages, arguing that the ESA and common law operate independently and that a statutory termination does not constitute a common law dismissal.

The Court of Appeal dismissed the appeal, holding that a statutory termination under s. 56(1) of the ESA is a termination for all purposes, displacing the common law and entitling the employee to claim common law wrongful dismissal damages.

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

The Court of Appeal dismissed the appeal, finding that the motion judge correctly applied the onus of proof and properly concluded that the respondent had satisfied its onus while the appellants failed to advance an affirmative defence.

Costs of $7,500 were awarded to the respondent.

The employer appealed a Small Claims Court decision finding that the employee was terminated by operation of the Employment Standards Act due to prolonged layoffs, and awarding common law damages.

The employer argued that damages should be restricted to the statutory minimums.

The Divisional Court dismissed the appeal, holding that the Act does not create a ceiling for damages.

A cross-appeal by the employee regarding the deduction of mitigation earnings was also dismissed.

The damages were reduced by $200 to account for an unpaid loan.

The appellant suffered a soft-tissue injury in a motor vehicle accident and was later diagnosed with chronic pain.

After an MRI revealed a disc bulge, she commenced an action.

The respondent successfully moved for summary judgment on the basis that the action was statute-barred, arguing the limitation period began at the chronic pain diagnosis.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider the statutory deductible as a factor in discoverability and by misapplying the onus of proof on summary judgment.

The respondent purchased two stolen tractor-trailers and added them to its fleet insurance policy.

The police later seized the trailers and returned them to their rightful owners.

The respondent claimed the loss under its insurance policy.

The insurer appealed the motion judge's decision.

The Court of Appeal allowed the appeal, holding that the policy did not cover the loss because the theft occurred before the respondent obtained the insurance.

The insurer's motion for summary judgment was granted and the action against it was dismissed.

The appellants appealed an interlocutory order granting the plaintiff leave to amend her Statement of Claim based on information provided in a Demand for Particulars.

The Divisional Court allowed the appeal, holding that statements made in judicial proceedings, including pleadings and particulars, are protected by absolute privilege, even if made falsely and maliciously.

The court also found that the plaintiff's claim for abuse of process lacked the essential element of an overt act distinct from the proceedings themselves.

The order granting leave to amend was set aside and the motion was dismissed.

The plaintiffs in a civil action arising from an assault sought production of police and Crown records relating to the young offenders who committed the assault.

The motion judge ordered production under the Rules of Civil Procedure, and a subsequent judge ordered compliance subject to a vetting process.

The Attorney General appealed, arguing that the Youth Criminal Justice Act (YCJA) provides the exclusive mechanism for accessing such records.

The Court of Appeal agreed, holding that section 118(1) of the YCJA clearly and unambiguously limits access to young offender records to the procedures set out in that Act, precluding the Superior Court from ordering production under Rule 30.10 or its inherent jurisdiction.

The appeal was allowed and the production order set aside.

The appellant appealed an order dismissing its motion for summary judgment.

The Court of Appeal quashed the appeal, finding that the order was interlocutory.

The Court noted that while the motion judge discussed the legal issue of absolute privilege attaching to a lawyer's letter, the order simply dismissed the summary judgment motion and would not bind the trial judge.