Civil Litigation - Defendant - OCA

This is a costs endorsement following the Court of Appeal's decision allowing an appeal from a summary judgment that had dismissed the appellant's action against the respondent University.

The motion judge had granted summary judgment in favor of the University but declined to award costs.

Following the successful appeal, the appellant sought costs of the summary judgment motion on a partial indemnity scale.

The Court of Appeal awarded costs to the appellant in the amount of $22,500 inclusive of disbursements and HST, a middle ground between the appellant's claim of $40,669.71 and the University's submission of $15,480.45.

The appellant appealed an order of the Superior Court that declared a prescriptive easement over only the rear portion of a gravel driveway strip between the appellant's plumbing business property and the respondents' residential property.

The application judge had found that the respondents could erect a fence blocking the front portion of the strip because its use was not necessary for the appellant.

The Court of Appeal allowed the appeal, finding that the application judge erred by conflating the criteria for establishing a prescriptive easement with the criteria for determining whether an encroachment substantially interferes with the easement's use.

The court held that the test is whether the dominant owner can use the easement as conveniently as before, not whether the use is necessary.

The easement was declared over the entire strip, and the respondents were enjoined from obstructing it with the proposed fence.

An insurer appealed a summary judgment decision that permitted insureds to retain insurance payments in excess of their actual loss.

The insurer paid $1,030,187.04 to the insureds following a fire loss, but an appraisal determined the total payable amount was $926,677.03, resulting in an overpayment of $103,510.01.

The motion judge held that the insureds could retain the excess funds based on an email communication from the insurer's representative.

The Court of Appeal reversed, holding that a contract of insurance is a contract of indemnity and cannot be used to turn misadventure into profit.

The court found the motion judge made a palpable and overriding error of fact in interpreting the email and committed extricable legal errors in analyzing both the insurance policy and the Insurance Act.

The appellants appealed a trial judgment awarding moral damages of $60,000 for breach of the implied contractual obligation of good faith in the manner of dismissal, along with general damages of ten months' salary in lieu of notice and $25,000 for sexual harassment under the Human Rights Code.

The appellants contended the moral damages award should be reduced to $20,000, arguing the trial judge considered irrelevant factors and that the award duplicated the sexual harassment damages.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the manner of dismissal holistically, including pre- and post-termination conduct that constituted bad faith.

The court held that moral damages and Human Rights Code damages serve different purposes and do not constitute double recovery.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and motion for leave to appeal under the Companies' Creditors Arrangement Act.

The court fixed the costs of the appeal and the motion for leave to appeal at $25,000, inclusive of disbursements and taxes, payable by the appellant union to the respondent.

The appellant appealed an order enforcing a 2005 settlement for the sale of shares, arguing he lacked mental capacity to consent and instruct counsel at the time.

The Court of Appeal upheld the motion judge's finding that the appellant failed to prove lack of capacity, lack of instructions, the respondents' awareness of any incapacity, or that the settlement was unfair.

However, the Court allowed the appeal in part to award the appellant interest on the $700,000 purchase price, as the respondents had the benefit of the appreciating shares in the intervening years.

The appellants successfully appealed a motion judge's decision limiting the scope of their class proceedings based on the Limitations Act.

The Divisional Court, however, refused to award the appellants their costs of the appeal, finding success was divided, and remitted the costs issue to the motion judge.

The Court of Appeal allowed the appeal on costs, holding that the Divisional Court erred in principle by mischaracterizing the appellants' success and by failing to apply the general rule that the costs of a successful appeal should be awarded to the appellant and not depend on the outcome of a rehearing.

The plaintiffs, twin brothers born prematurely who developed cerebral palsy, sued their mother's obstetrician for negligence.

The trial judge found the obstetrician breached the standard of care by failing to assess the mother when she reported leaking fluid, resulting in a failure to administer a full course of antenatal corticosteroids (ACS).

The trial judge concluded this failure caused the twins' cerebral palsy and awarded damages.

The obstetrician appealed the causation finding.

The Court of Appeal dismissed the appeal, with the majority holding that the trial judge made no palpable and overriding error in applying a robust and pragmatic approach to the expert evidence and concluding that the failure to administer ACS caused the injuries.

The Court of Appeal issued an addendum to clarify the costs and interest awarded in its previous decision (2012 ONCA 143).

The appellants were awarded costs of the appeal fixed at $6,700, costs of the trial to be agreed upon or assessed, and pre- and post-judgment interest in accordance with the Courts of Justice Act.

The self-represented appellant appealed a trial decision.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's findings of fact, which the court noted it had limited jurisdiction to interfere with.

No costs were awarded.

The appellant appealed a summary judgment decision.

The Court of Appeal reviewed the record and the motion judge's detailed reasons, finding no error.

The appeal was dismissed with no costs.

The appellant appealed an order dismissing his application for declaratory relief as statute-barred.

The appellant argued that under s. 16(1)(a) of the Limitations Act, there is no limitation period for his application.

The Court of Appeal dismissed the appeal, finding that the application implicitly sought consequential relief, taking it outside the scope of s. 16(1)(a).

The Court noted that any viable claim the appellant might have would be through an application for an order to pass accounts.

The appellants appealed a decision striking their claims for breach of fiduciary duty and breach of duty of care against a teacher and school boards.

The motions judge had struck the claims on the basis that the psychological damages pleaded were not reasonably foreseeable.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that a teacher's alleged breach of duties towards a 13-year-old student could not cause reasonably foreseeable psychological damage.

The parents' direct claim against the school board was also permitted to proceed.

The appellant appealed an order declaring an agreement of purchase and sale valid and granting the purchasers specific performance and damages.

The Court of Appeal dismissed the appeal, finding that the essential terms of the contract were clear and binding.

The court upheld the application judge's findings that the property was unique, justifying specific performance, and that it was reasonable to calculate damages as of the date of judgment rather than the date of breach to account for the property's enhanced value pending planning approval.

The appellants appealed a summary judgment order dismissing their claims against the respondents.

The Court of Appeal found that the motion judge erred by weighing evidence and concluded there was a genuine issue for trial regarding whether one respondent was a director of the corporation, and regarding a limitation period issue.

However, the court upheld the dismissal against another respondent, as there was no evidence he agreed to be appointed as a director.

The appeal was allowed in part.

The appellants sold their shares in a trailer park to the respondents, taking back a promissory note bearing 10 percent interest annually until maturity.

The note did not specify a post-maturity interest rate.

After the respondents defaulted, the trial judge held that the post-maturity interest rate was 5 percent pursuant to section 3 of the Interest Act.

The Court of Appeal allowed the appeal, holding that the prejudgment interest provisions of the Courts of Justice Act ousted section 3 of the Interest Act.

The Court exercised its discretion to fix the post-maturity interest rate at 10 percent, matching the pre-maturity rate, to reflect commercial reality and prevent the respondents from benefiting from their default.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that the order under appeal was interlocutory rather than final, and that the result of the motion would have inevitably been the same whether brought in Kingston or Toronto.

Costs were awarded to the respondent on a partial indemnity basis.

The appellant was terminated from her employment of 15.5 years while dealing with medical issues.

The trial judge found the employer acted in bad faith and initially awarded 12 months' notice, which she later increased to 16 months after being informed of a Rule 49 offer to settle.

The appellant appealed the notice period and the dismissal of her claim for aggravated and punitive damages.

The respondent cross-appealed, arguing the trial judge erred in increasing the notice period after learning of the settlement offer.

The Court of Appeal dismissed both appeals, finding the 16-month notice period was within a reasonable range and that a trial judge has broad discretion to alter a judgment before it is formally entered.

The appellants, indirect purchasers of homes containing concrete bricks coloured with the respondents' iron oxide pigment, sought to certify a class action alleging a price-fixing conspiracy.

The motion judge certified the action, but the Divisional Court set aside the certification.

On appeal, the Court of Appeal upheld the Divisional Court's decision, finding that the appellants failed to provide a sufficient evidentiary basis to show that loss could be proved on a class-wide basis.

Because liability required individual proof of loss, a class action was not the preferable procedure.

Homeowners and the Ontario New Home Warranty Program brought actions against a concrete supplier (Bertrand) and a cement manufacturer (Lafarge) for defective concrete foundations caused by the introduction of fly ash.

The trial judge found Lafarge 80% liable and Bertrand 20% liable in negligence for failing to conduct adequate testing.

Lafarge appealed the liability findings and the costs award (which ordered Lafarge to pay 90% of costs due to its conduct at trial).

Bertrand cross-appealed seeking full indemnity.

The Court of Appeal dismissed the appeals and cross-appeals, upholding the trial judge's findings on liability, apportionment, and costs, while varying the judgment slightly to reflect settlements reached during the appeal regarding prejudgment interest and one homeowner's garage.