Civil Litigation - Defendant - OCA

Following a successful appeal, the Court of Appeal determined the appellant's costs for the underlying action.

The court awarded the appellant costs of the underlying action, including summary judgment motions but excluding costs associated with a cross-claim, on a partial indemnity basis in the amount of $65,231.79.

The court declined to make an order regarding additional costs sought by the appellant's shareholders' counsel.

The appellant appealed the dismissal of its application for a prescriptive easement over the respondents' parking spaces.

The Court of Appeal upheld the application judge's finding that the appellant's affidavit evidence failed to establish 20 years of continuous use prior to the property's transfer to the land titles system in 2002, as it did not comply with Rule 39.01(5).

Furthermore, the Court agreed that the use of the parking spaces was a matter of mutual convenience rather than 'as of right'.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed an order of the motion judge.

The Court of Appeal found no error in the motion judge's conclusion that there was no viable defence on the record and that the interests of justice were considered.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed a summary judgment dismissing their action against the respondent insurer for breach of the duty of good faith.

The motion judge had found the action was barred by the one-year limitation period in the standard automobile policy.

The Court of Appeal allowed the appeal, holding that the cause of action did not arise until the insured's liability was finally ascertained by judgment.

Furthermore, the court held that a claim for breach of the independent duty of good faith is not a claim under the insurance contract, and is therefore subject to the general six-year limitation period rather than the one-year statutory condition.

The appellant commenced a proposed class action asserting a statutory cause of action under s. 130 of the Securities Act for misrepresentations in a prospectus.

The motion judge found the claim was barred by the limitation period in s. 138 of the Securities Act and was not saved by the suspension of limitation periods in s. 28 of the Class Proceedings Act.

The Court of Appeal upheld the decision, finding that a prior class action appeal did not encompass the s. 130 claim, meaning the suspension of the limitation period ended when the time to appeal the dismissal of that specific claim expired.

The appellant estate appealed a trial judgment awarding damages for medical malpractice following a fatal infection caused by a dislodged feeding tube.

The trial judge found the surgeon breached the standard of care by failing to suture the jejunum to the abdominal wall, relying on expert opinion interpreting the operative notes.

The Court of Appeal allowed the appeal, holding that the trial judge erred in preferring expert opinion over the direct evidence in the subsequent operative report, which clearly indicated the jejunum was attached.

The action was dismissed.

The appellants appealed an order granting a mistrial in a motor vehicle accident damages trial.

The trial judge ordered a mistrial after finding that the cumulative effect of inflammatory comments made by the appellants' trial counsel during closing arguments impaired trial fairness and could not be cured by a correcting instruction.

The trial judge also declined to decide the issue of damages herself, preserving the respondents' right to a jury trial.

The Court of Appeal dismissed the appeal, deferring to the trial judge's assessment of the impact of counsel's statements and her decision to order a mistrial.

The appellant appealed an order finding that the respondent had met his obligation to cooperate under the minutes of settlement.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's reliance on the respondent's accountant's evidence regarding the risk of filing a false tax return.

The court also upheld the motion judge's costs order.

The appellant appealed a motion judge's order permitting the respondent to amend their pleadings to correct a misnomer.

The respondent had inadvertently named the wrong, but closely related, corporate entity in a slip and fall claim.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellant had probable knowledge it was the target of the litigation within the limitation period and suffered no irreparable prejudice.

The appellants appealed the dismissal of their application to declare a share valuation null and void, and the granting of the respondents' application to declare the valuation binding.

The appellants argued the valuator acted as an arbitrator and failed to follow an understanding regarding document disclosure.

The Court of Appeal upheld the application judge's findings that the valuator was not an arbitrator and had no contractual obligation to provide the requested documents.

The appeal, including an appeal on costs, was dismissed.

The appellant appealed a trial judgment, arguing the trial judge erred in refusing to permit him to call his wife as a witness.

The Court of Appeal dismissed the appeal, finding no error given the lengthy delays, the failure to list the wife in the affidavit of documents, the failure to notify opposing counsel until the date of trial, and the wife's unavailability on the first day of trial.

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

The appellant slipped and fell on a grape in the produce department of a grocery store owned by the respondent.

A jury found the respondent had taken reasonable care and dismissed the action.

On appeal, the appellants argued the trial judge erred in instructing the jury on the standard of care and causation, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the trial judge properly instructed the jury on the standard of reasonableness under the Occupiers' Liability Act, and that there was sufficient evidence of the respondent's floor maintenance program to support the jury's verdict.

The appellant appealed an order finding that purported Minutes of Settlement were unenforceable.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the settlement lacked material and fundamental terms, such as provisions regarding second mortgages and rights of first refusal.

Furthermore, the Court found that even if an agreement existed, the appellant repudiated it through his conduct, including failing to communicate, execute documents, or maintain the property.

Costs were awarded to the respondents on a full indemnity basis.

The appellant appealed a jury verdict dismissing her medical malpractice claims against the respondent doctor, who inadvertently punctured her radial artery while attempting to aspirate a ganglion cyst.

The appellant argued the jury's verdict and nil damages assessment were unreasonable, and that the trial judge misdirected the jury.

The Court of Appeal dismissed the appeal, finding the jury was entitled to reject the appellant's evidence and conclude the doctor met the standard of care for informed consent.

The court also found no reviewable errors in the trial judge's jury charge and held that the standard practice for removing a ganglion cyst is not fraught with obvious risks.

The plaintiff was injured in a car accident by an unidentified driver and claimed the $200,000 policy limit under his unidentified driver coverage with the defendant insurer.

The plaintiff also received $102,400 in disability benefits from a private disability policy.

The defendant insurer sought to deduct the disability benefits from the $200,000 limit pursuant to s. 2(1)(b) of O. Reg. 676.

The motion judge held the deduction was not permitted due to the common law private insurance exception to the rule against double recovery.

The Court of Appeal allowed the appeal, holding that the regulation abrogated the common law exception and the insurer was entitled to deduct the disability payments.

The appellant previously established that the respondent lawyers breached their fiduciary duty to him, but a new trial was ordered to assess his personal damages.

At the retrial, the trial judge dismissed all damage claims because the appellant failed to prove direct personal losses or a causal connection to the breach.

The Court of Appeal upheld the dismissal of the damages claims, agreeing that the evidence was insufficient.

However, the Court allowed the appeal in part to set aside the costs award against the appellant, finding that no costs should be ordered given the respondents' serious breach of fiduciary duty.

Following the dismissal of the appellant insurer's appeal regarding its duty to defend the respondent insured, the Court of Appeal determined the scale and quantum of costs.

The court declined to award costs on a substantial indemnity basis, noting that the significant issue of insurance coverage remained to be determined at trial.

Costs were awarded on a partial indemnity basis, fixed at $11,500 for the respondent insured and $10,000 for the respondent co-insurer, inclusive of disbursements and GST.

The plaintiff brought an action against the defendant for damages arising from sexual contact in 1972.

The defendant sought to add the plaintiff's parents and former boyfriend as third parties, arguing they were responsible for the plaintiff's damages due to subsequent abuse.

The motions judge dismissed the motion to add the third parties.

The Court of Appeal dismissed the defendant's appeal, holding that section 1 of the Negligence Act only permits claims for contribution and indemnity between concurrent wrongdoers, not independent tortfeasors whose acts occurred at different times.

The respondents originally brought an oppression application, and the appellants brought a cross-application.

The motion judge struck the cross-application on the basis that it sought relief that was or could have been sought in an earlier action commenced by the appellants, which had been dismissed on consent.

On appeal, the appellants sought to resurrect claims for an accounting and compensation for oppression.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the claims were barred by res judicata.

The appellant mortgagee appealed an order staying its action against one corporate respondent after a foreclosure action had been converted to one for judicial sale.

The court held that the consent order arising from the negotiations was clear and unequivocal, and did not result from mistaken intentions or a failure to reflect the parties' agreement.

The appellant knew it had to choose which defendant would be the subject of judgment and that consequences flowed from that choice.

By signing judgment against another defendant, the appellant's right to recover against the respondent corporation was terminated by s. 20(3) of the Mortgages Act.

The appeal was dismissed with costs.