Civil Litigation - Defendant - OCA

G.E.S. Construction Limited appealed the dismissal of its motion seeking a declaration that Lloyd’s Underwriters had a duty to defend and indemnify it under a 2015 insurance policy.

The Court of Appeal upheld the motion judge’s decision, finding no waiver or estoppel by Lloyd’s and no bad faith in its conduct.

The appeal was dismissed and costs were awarded to the respondent.

The appellants abandoned their appeal on the eve of the hearing.

The decision addresses the issue of costs arising from the abandoned appeal.

The appellants argued against a costs award, citing an offer to settle.

The respondents, specifically the Estate of YYY and XXX, sought costs on a full or substantial indemnity basis, alleging the appeal constituted an abuse of process.

The court rejected both arguments, finding the offer to settle did not preclude a costs award and that the appeal, despite its procedural history, was not an abuse of process.

The respondents Estate of YYY and XXX were awarded $30,000 in all-inclusive costs from the appellants.

The appellants appealed an approval and vesting order that authorized a receiver to sell a property in receivership.

One of the appellants, a second mortgagee, sought to redeem the first mortgage or be recognized as a successful creditor bidder, arguing an absolute right to redeem under the Mortgages Act.

The Court of Appeal dismissed the appeal, affirming the motions judge's decision that the right to redeem is qualified once a court-approved sales process has been undertaken in a receivership.

The court emphasized balancing the right to redeem against the integrity of the court-supervised sales process, finding no error in the motions judge's conclusion that the sales process was fair and the balance favoured its integrity.

The father sought a stay of a trial judgment that permitted the mother to relocate to California with their children and ordered the father to pay retroactive and ongoing child and spousal support.

The motion judge dismissed the father's request for a stay, finding that he failed to demonstrate a serious question for appeal or that the children would suffer irreparable harm if the stay was not granted.

The court emphasized that granting a stay would radically alter the children's established living arrangements and was not in their best interests, especially given the father's thin record and the trial judge's detailed findings.

The moving parties, who had commenced an action alleging fraudulent conveyance and seeking a certificate of pending litigation (CPL), appealed the dismissal of their CPL motion.

They brought two appeals (to Divisional Court and Court of Appeal) and two motions in the Court of Appeal: one to determine jurisdiction (final vs. interlocutory order) and another for an interim CPL under s. 134(2) of the Courts of Justice Act.

The single motion judge declined to rule on the interim CPL, citing reservations about jurisdiction given the pending determination by a panel.

The judge adjourned the interim CPL motion to be heard concurrently with the jurisdiction motion on an expedited basis and extended the appeal perfection date.

The judge also commented on the systemic confusion regarding appeal routes in Ontario.

The appellant father, a self-represented family law lawyer, brought a motion to extend the time for perfecting his appeal concerning child support arrears, inter-party debt, and parenting time.

The respondent mother opposed the motion.

The court dismissed the motion, finding the appellant's delay inordinate and inadequately explained, his litigation conduct indicative of delay tactics, and the merits of his appeal very weak.

The court also ordered the appellant to pay costs to the respondent.

The applicant, Dexter Griffith, sought an order under s. 684 of the Criminal Code for the appointment of counsel to assist with his conviction appeal, having been denied legal aid due to perceived lack of merit.

The Crown opposed the application.

The court granted the application, finding that the appeal presented arguable grounds, specifically regarding the validity of a search warrant based on the Information to Obtain (ITO) and the permissible amplification of the ITO.

The court also determined that counsel was necessary given the complexity of the legal issues and the applicant's cognitive limitations following a traumatic brain injury.

Yanlin He sought leave to appeal the dismissal of his appeal from convictions for employing individuals without the required certificate of qualification for the compulsory trade of construction electrician.

He argued that the work performed was that of an industrial electrician (a voluntary trade) and that interpretation errors in a key witness's trial evidence affected his right to a fair trial.

The Court of Appeal admitted fresh evidence regarding the interpretation errors but found that even with the new translation, the Justice of the Peace's conclusion that the work constituted that of a construction electrician was open to her.

The court determined that the first issue was one of mixed fact and law, not law alone, and that the interpretation error, while raising a question of law, did not lead to a miscarriage of justice.

Leave to appeal was denied as the matter was fact-driven and did not transcend the parties or public interest, especially given the impending repeal of the relevant Act.

This appeal concerned the interpretation of a will regarding the disposition of a cottage property and its sale proceeds.

The estate trustee sought directions on how to distribute the proceeds among the testator's grandchildren.

The motion judge ruled for equal distribution among the four surviving grandchildren.

The appellant, a grandchild, appealed, seeking a larger share based on a different interpretation of the will's clauses.

The respondents cross-appealed on the motion judge's reasoning, not the outcome.

The Court of Appeal dismissed both the appeal and the cross-appeal, affirming the motion judge's decision that the proceeds should be distributed equally among the four grandchildren alive at the end of the life interests, based on the testator's intention as determined through the "armchair rule."

The Court of Appeal for Ontario considered a motion brought on consent.

The motion was dismissed, with costs reserved to the panel hearing the appeal.

The appellant moved for a stay of an order requiring the return of two children to England under the Hague Convention on the Civil Aspects of International Child Abduction.

The respondent brought a cross-motion to dismiss the appeal.

The application judge had ordered the children returned to England, their habitual residence, after finding that the appellant had wrongfully retained them in Canada.

The Court of Appeal dismissed the cross-motion, finding the two sets of reasons constituted one final order appealable within the prescribed timeframe.

The court refused to stay the order for return of the children, finding no irreparable harm and that the balance of convenience favoured prompt return.

However, the court granted a partial stay with respect to portions of the order purporting to order the appellant's return to England and to award custody to the respondent if the children were not returned by the deadline.

The appellants appealed a judgment enforcing a settlement and release, as well as the associated costs order.

The Court of Appeal dismissed the appeal on the merits, finding no surprise or prejudice to the appellants regarding the settlement issue and agreeing with the motion judge's reasons.

However, the Court granted leave and allowed the appeal regarding costs, finding no basis for an award exceeding partial indemnity.

The costs order below was set aside and replaced, and costs of the appeal were awarded to the respondents.

The plaintiffs invested in worthless start-up companies on the advice of their financial advisor, who was registered to sell mutual funds through the appellant dealer.

The advisor promoted these off-the-books investments openly from his office.

The trial judge found the dealer liable in negligence for failing to supervise the advisor and vicariously liable for his actions, concluding he was an employee rather than an independent contractor.

The Court of Appeal dismissed the dealer's appeal, upholding the findings that the dealer breached its duty to supervise its mutual fund sales agent and was vicariously liable for his wrongdoing.

The appellant appealed a trial judgment dismissing their claim against the respondents.

The Court of Appeal upheld the trial judge's finding that the risk of harm was not reasonably foreseeable, noting there was evidence to support this conclusion.

The appeal was dismissed with costs awarded to the respondent municipality, though the court expressed hope that costs would not be requested.

The appellant, a real estate broker, created a website that provided the public with direct access to the Toronto Real Estate Board's (TREB) MLS Database.

TREB suspended the appellant's access without notice, arguing he breached the Authorized User Agreement (AUA).

The trial judge found the appellant breached the AUA by not confining his use of the database to exclusive and internal use, and that TREB was justified in suspending access without notice.

The Court of Appeal upheld the trial judge's interpretation of the AUA and dismissed the appeal.

The appellants, majority shareholders of a family company, appealed a trial judgment finding them liable for oppression and breach of trust against the minority shareholders.

The trial judge found they breached their fiduciary duties by purchasing their sisters' shares and by paying themselves excessive management compensation.

The Court of Appeal allowed the appeal in part, finding no breach of trust in the share purchase given the company's precarious financial position at the time and the minority's failure to complain.

However, the Court upheld the finding that the retroactive management compensation was oppressive and excessive.

The cross-appeal was allowed in part to award prejudgment interest on the excessive compensation.

The appellant, acting as receiver for a yacht manufacturer, appealed the dismissal of its insurance claim against the respondent export credit insurer.

The manufacturer had not been paid for boats delivered to a U.S. dealer and to Spain.

The dealer refused to pay because the manufacturer's receivership meant it could not fulfill warranty obligations.

The Court of Appeal upheld the trial judge's finding that while the loss fell within the policy's initial coverage, the insurer successfully proved that an exclusion applied because the buyer did not pay due to a legitimate dispute regarding the export contract.

The appeal was dismissed.

The appellants challenged judgments awarding the respondent recovery on a counterclaim and an equalization payment arising from a family farm and matrimonial property dispute.

The court held that the evidence supported the findings that amounts advanced by the respondent were repayable and that the valuation of assets and equalization calculation were supported by the record.

The court rejected a late-raised unequal division argument because it had not been pleaded and was not disputed at trial.

The order directing payment from monies paid into court from the sale of the milk quota was also upheld.

The appellants sought to overturn an assessment of a law firm's accounts and attempted at the opening of the appeal to introduce fresh evidence from a former solicitor.

The Court of Appeal refused to entertain the request because no proper fresh evidence application material had been filed.

On the merits, the court held there was no basis to interfere with concurrent findings that a retainer existed and that the assessment officer's taxation of the accounts, as varied on appeal, was supported by ample evidence.

The appeal was dismissed with costs.

The appellant challenged a Rule 21 declaration that a snowmobile is not an "automobile" within s. 224(1) of the Insurance Act.

The appeal court held it had jurisdiction because the order finally disposed of an issue of law and was neither an order for payment of money nor one dismissing such a claim.

On the merits, the court adopted the motion judge's reasoning that the Compulsory Automobile Insurance Act incorporates the Highway Traffic Act definition of "motor vehicle", which expressly excludes motorized snow vehicles.

As a result, a snowmobile does not fall within the statutory definition of "automobile" for Part VI of the Insurance Act, and the appeal was dismissed with costs.