Civil Litigation - Defendant - OCA

This is a costs endorsement following a judgment by the Court of Appeal for Ontario, which had previously dismissed both the appellant's appeal and the respondents' cross-appeal.

The Court determined the costs payable, awarding the primary respondents $50,000 from the appellant, despite the respondents seeking over $71,000 and the appellant proposing $40,000.

The Court was not persuaded by the appellant's public interest argument or the relevance of costs awarded in a comparable case that were based on party agreement.

Additionally, the Law Foundation of Ontario, which responded to the cross-appeal, was awarded $10,000 in costs from the primary respondents.

The appellants sought to appeal two judgments.

The Court of Appeal found it lacked jurisdiction to hear the appeal of the first judgment (October 2020 Judgment) because a prior appeal of that judgment had been dismissed for delay or abandoned, constituting an impermissible collateral attack.

The court declined to exercise its power to set aside the prior dismissal, emphasizing that proper procedural rules must be followed for such a request.

The appeal concerning the second judgment (February 2021 Judgment) was adjourned and will be rescheduled.

Costs thrown away were awarded to the respondents.

The Court of Appeal for Ontario heard two motions within an ongoing appeal: one by the appellants to set aside a prior order for security for judgment and costs, and another by the respondents to dismiss the appeal for non-compliance.

The court granted the appellants' motion in part, setting aside the requirement for security for the judgment amount but affirming the order for security for trial and appeal costs.

The respondents' motion to dismiss the appeal was dismissed as moot.

The court allowed the appellants to retract a previous concession regarding the appeal's frivolousness.

The appellants, a condominium developer and related entities, appealed a jury verdict awarding damages to the respondents for injuries sustained when an A-frame sign placed on a downtown Toronto sidewalk struck the plaintiff in the face during windy conditions.

The jury found both the developer and the sign contractor liable, apportioning fault 94% to the developer and 6% to the contractor.

The appellants challenged the trial judge's instructions on duty of care, apportionment of liability, and foreseeability.

The Court of Appeal dismissed the appeal, finding no material misdirection warranting intervention.

The cross-appellant's challenge to costs awards was also dismissed.

The appellant appealed a trial judgment finding that it had repudiated a contract by indicating it would no longer pay the agreed contract price.

The Court of Appeal upheld the trial judge's factual inference that the appellant's conduct, including repeatedly seeking lower quantities and prices, demonstrated an intention not to honour the contract price going forward.

The Court also upheld the finding that the respondent accepted the repudiation by cancelling a shipment and pursuing litigation, and effectively communicated this acceptance.

The appeal was dismissed with costs.

The appellants appealed an order enforcing a settlement agreement.

The respondent had purported to accept a Rule 49 offer to settle after a supervisor was appointed over the corporate appellants and after transferring his interest in a shareholder loan to his daughter.

The Court of Appeal allowed the appeal, finding that the supervision order contained a stay provision and Rule 11 applied to the transfer of interest.

Consequently, accepting the offer and bringing the motion to enforce were steps in the proceeding that required leave of the court, which was not obtained.

The appellant appealed a decision finding that its commercial general liability insurance policy did not cover its distribution centres.

The application judge found the policy ambiguous and relied on uncontroverted extrinsic evidence to determine the parties' intentions regarding coverage.

The Court of Appeal agreed with the finding of ambiguity and dismissed the appeal, awarding costs to the respondent.

The appellants appealed a trial judge's finding that an offer to lease commercial premises did not constitute a binding lease agreement.

The trial judge admitted parol evidence showing the parties intended the offer to be preparatory to a formal lease and that the respondent never gained possession of the premises.

The Court of Appeal upheld the trial judge's findings, concluding that the parol evidence was admissible to determine the factual matrix and that the doctrine of part performance did not apply because possession was never granted.

The appeal was dismissed with costs.

The defendant supplied a helicopter engine to the plaintiff under a commercial agreement containing a forum selection clause specifying Arizona as the exclusive jurisdiction.

After the helicopter crashed in Saskatchewan, the plaintiff sued in Ontario.

The motion judge dismissed the defendant's motion to stay the action, applying a forum non conveniens analysis.

The Court of Appeal allowed the appeal, holding that the motion judge erred by treating the forum selection clause as merely one factor in a forum non conveniens analysis.

Under the strong cause test, a forum selection clause in a commercial contract must be enforced unless exceptional circumstances are shown.

The appellants appealed a summary judgment dismissing their counterclaim.

The Court of Appeal allowed the appeal, finding that genuine issues for trial existed regarding whether the Consumer Protection Act applied to a handwritten estimate for a construction contract, and whether the contract was exempt from the Act as part of a real estate transaction.

The matter was remitted for trial.

The appellant appealed a motion judge's decision finding that Ontario had jurisdiction over it in the action.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's reasons or conclusion, noting that the appellant accepted all findings of fact and the motion judge considered all relevant factors in the governing test.

The appellant, an innocent bystander, was rendered paraplegic after being struck by a bullet fragment during a drive-by shooting.

She brought an action against the unidentified driver of the vehicle and her own automobile insurer under the OPCF 44R Endorsement.

The insurer successfully moved for summary judgment on the basis that the injuries did not arise directly or indirectly from the use or operation of an automobile.

The Court of Appeal dismissed the appeal, finding that while the vehicle was used for an ordinary purpose, the shooting was a distinct and intervening act that broke the chain of causation.

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

On consent of the parties, the Court of Appeal allowed the appeal and issued an order in accordance with the filed draft order.

The deceased was seriously injured in a motor vehicle accident and died several months later.

His estate commenced an action more than two years after the accident but within two years of his death.

The motion judge dismissed the action as statute-barred.

On appeal, the estate argued that the limitation period should run from the date of death under the Trustee Act and the Insurance Act.

The Court of Appeal dismissed the appeal, holding that the death of the injured party does not create a new cause of action and the limitation period runs from the date of the accident.

The appellants appealed a judgment based on a promissory note and uncontradicted evidence of debt.

The Court of Appeal dismissed the appeal, refusing to entertain submissions that contradicted concessions appropriately made by the appellants' counsel before the motion judge.

Costs were awarded to the respondent.

The plaintiff suffered injuries at the defendant's amusement park but failed to commence an action within the two-year limitation period under the Limitations Act, 2002 due to lawyer inadvertence.

The motion judge applied the common law doctrine of special circumstances to extend the limitation period.

The Court of Appeal allowed the defendant's appeal, holding that the Limitations Act, 2002 is a comprehensive scheme that does not preserve the court's common law discretion to extend limitation periods based on special circumstances.

The action was declared statute-barred.

The moving party brought a motion for an extension of time to perfect its appeal from an order dismissing its motion to set aside a noting of default.

The responding party had previously obtained default judgments discharging mortgages and awarding possession of the property.

The Court of Appeal granted the extension of time, noting that the moving party had formed a timely intention to appeal and the deficiencies in its initial filing were minor.

The appellant appealed a trial judgment dismissing her claim against a bar and its employees for an assault committed by an intoxicated patron.

The trial judge found that the bar and its employees could not have reasonably foreseen that the patron would assault anyone as a result of his drinking at the bar.

The Court of Appeal upheld this finding, concluding there was no basis to interfere with the trial judge's decision that the assault was not reasonably foreseeable.

The appeal was dismissed with costs.

The appellant purchasers entered into Agreements of Purchase and Sale with the respondent vendors to acquire farmlands for a golf course development.

The agreements were conditional on obtaining severance approvals for estate lots to be retained by the vendors.

The purchasers waived this condition and sought to close without the approvals, which the vendors refused.

The trial judge found the waiver clause ambiguous and held that the true intention of the parties required severance approvals prior to closing, declaring the agreements null and void and ordering the deposits forfeited.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's interpretation and confirming that the purchasers' failure to perform the contract justified the forfeiture of the deposits.

The appellant, who operated a residential home, sought a declaration that his insurers had a duty to pay for his legal representation at a coroner's inquest following the death of a resident.

The appellant argued the inquest constituted a 'claim' under his insurance policy.

The Court of Appeal dismissed the appeal, holding that while an inquest is an investigation, it does not involve a claim because it cannot establish civil responsibility or liability.