Civil Litigation - Defendant - OCA

The appellants appealed a summary judgment that dismissed their action in negligence and breach of contract against the respondent regarding a slip and fall on restaurant stairs.

The motion judge had dismissed the claim regarding hazards on the stairs but allowed the appellants to amend their claim to plead a breach of the Consumer Protection Act for failing to advise of a main floor washroom.

The Court of Appeal dismissed the appeal, finding the motion judge correctly dismissed the first branch of the claim due to a lack of evidence of stair hazards, and properly preserved the second branch regarding the failure to advise.

The appellant appealed an order striking his claim against the lawyers who represented his former spouse in family law proceedings.

The appellant alleged the lawyers caused delays, distress, and hardship, and misled the court.

The motion judge struck the claim, finding no duty of care owed by the lawyers to the opposing party and concluding the action was an abuse of process and a collateral attack on previous family court and Law Society decisions.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusions that the statement of claim disclosed no reasonable cause of action and constituted an abuse of process.

The City of Hamilton appealed a decision declaring its equipment installation by-law inoperative against Canada Post's installation of community mailboxes.

The by-law imposed a moratorium and permit fees on Canada Post.

The Court of Appeal found that while the by-law's pith and substance—regulating municipal rights of way—was within provincial jurisdiction, it conflicted with the federal purpose of the Canada Post Corporation Act and its regulations, which grant Canada Post sole decision-making power over the location of mail receptacles.

The appeal was dismissed under the doctrine of federal paramountcy.

The appellant appealed a summary judgment dismissing his claims for wrongful dismissal against affiliated companies of his bankrupt former employer.

He argued they were liable as common employers and conspired to use the bankruptcy process to defeat his claims.

The Court of Appeal upheld the motion judge's finding that there was no evidentiary basis for the common employer claim and that the employment agreements precluded joint liability.

The court also found no unfairness in the motion judge requesting additional submissions on the common employer issue.

The appeal was dismissed.

The moving party brought a motion to review a single judge's decision dismissing his motion for an extension of time to file a Notice of Appeal.

The moving party argued the judge placed undue emphasis on his troubling explanation for the delay and erred in finding no merit in the proposed appeal.

The Court of Appeal dismissed the motion, finding no palpable and overriding error of fact and agreeing that the correct legal test was applied.

The appellant appealed a summary judgment dismissing her action against her insurer for terminating her Income Replacement Benefits.

The motion judge found the action was barred by the two-year limitation period under the Insurance Act.

The Court of Appeal dismissed the appeal, holding that the termination notice was clear and unequivocal, and affirming that the limitation period is triggered by a single event—the refusal to pay the benefits claimed—rather than operating as a rolling limitation period.

The respondents transferred their home to the appellant at below market value as part of a scheme to defraud creditors, with an oral agreement for re-conveyance.

When the appellant refused to re-convey the property, the respondents sued for unjust enrichment and a constructive trust.

The trial judge found the agreement of purchase and sale was a sham and ordered a re-conveyance based on unjust enrichment.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of unjust enrichment or the 'clean hands' doctrine.

The moving party brought a motion to quash the appellants' appeal from a judgment implementing a consent to judgment.

The Court of Appeal granted the motion to quash, noting that under section 133(a) of the Courts of Justice Act, an appeal from a consent order requires leave.

The appellants had improperly sought leave within their Notice of Appeal rather than bringing a motion in writing as required by Rule 61.03.1.

The appeal was quashed without prejudice to the appellants bringing a proper motion for leave to appeal.

The appellant trustee in bankruptcy appealed the dismissal of its motions for summary judgment and to strike portions of the respondent's claim.

The respondent, an interim receiver, sued the appellant for breach of fiduciary duty.

The appellant argued the claim was statute-barred and an abuse of process.

The Court of Appeal upheld the motion judge's finding that the limitation period did not begin until the respondent received withheld reports containing material facts, and found no error in the dismissal of the abuse of process motion.

The appeal was dismissed.

Following a successful appeal regarding the apportionment of damages, the court determined the costs of the appeal and cross-appeal.

The third parties were ordered to pay partial indemnity costs of $50,000 to the appellants and $75,000 to the respondents.

The appellants were ordered to pay $30,000 in partial indemnity costs to the respondents, as the respondents were required to address all issues initially raised by the appellants.

The appellant appealed an order dismissing his action under Rule 2.1 of the Rules of Civil Procedure as frivolous and vexatious.

The appellant had sued the Divisional Court, the Province, and the Public Guardian and Trustee regarding prior settlements approved by the court.

The Court of Appeal found no error in the motion judge's conclusion that the claim was devoid of merit and dismissed the appeal.

The moving party, Unifund Assurance Company, brought a motion that was scheduled to be heard by teleconference.

Due to apparent bad connections, particularly on the part of the self-represented responding party, the court found the telephone motion unworkable.

The court adjourned the motion to a later date, directing the responding party to appear in person.

The respondent commenced an action alleging he was induced to enter into a shareholders' agreement by fraudulent misrepresentations.

The appellants moved to stay the action under s. 7 of the Arbitration Act, relying on an arbitration clause in the agreement.

The motion judge refused the stay, finding the pith and substance of the claims were tortious rather than contractual.

The Court of Appeal allowed the appeal, holding that the motion judge erred by assuming tort claims and allegations of fraud fall outside the scope of a broadly worded arbitration agreement, and by failing to apply the competence-competence principle which requires jurisdictional challenges to be resolved first by the arbitrator.

The appellants purchased luxury hotel condominium units in the Trump International Hotel based on financial estimates provided by the developer, Talon.

The estimates projected significant returns but were based on uninformed opinions and understated expenses.

The appellants sued for misrepresentation.

The motion judge dismissed their claims, finding their reliance on the estimates unreasonable and barred by entire agreement clauses.

The Court of Appeal reversed, holding that reliance was reasonable and it would be unconscionable to enforce the exculpatory clauses given Talon's evasion of Securities Act protections.

The Court ordered rescission for one appellant and damages for the other.

The appellant sought an adjournment of the appeal to allow appellate counsel sufficient time to prepare for argument.

The respondent opposed the adjournment.

The Court of Appeal granted the adjournment, noting it was the first request, but ordered the appellant to pay $8,000 in costs thrown away to the respondent within 15 days.

Following a successful appeal, the parties agreed on appeal costs but could not agree on the costs of the underlying application or the payment of interest.

The Court of Appeal fixed the application costs at $40,000 inclusive of disbursements and taxes, taking into account the appellant's offer to settle.

The Court also ordered that interest at three percent per annum is payable on the judgment.

The respondent brought a motion in his family law proceedings to compel his former solicitor to deliver his complete file to his new lawyer.

The former solicitor resisted, claiming a solicitor's lien for unpaid fees.

The motion judge ordered the file to be turned over temporarily for copying.

The former solicitor appealed.

During the appeal hearing, the parties agreed to a variation of the order allowing the former solicitor to retain original signed documents and provide electronic copies of electronic records.

The Court of Appeal varied the order accordingly and awarded costs to the respondent.

The appellant appealed the dismissal of her action against the respondent bank for allegedly negligently negotiating a cheque for $35,518.95.

The cheque was made payable jointly to the appellant and a property management company.

The trial judge found that the bank acted properly in negotiating the cheque, which was endorsed by both payees and deposited into the account of the presenting payee.

The Court of Appeal found no error in the trial judge's findings of fact or application of the law and dismissed the appeal.

The appellant was substantially successful on appeal and sought costs.

The Court of Appeal awarded the appellant $7,500 in costs on a partial indemnity basis for the appeal.

However, the court declined to alter the costs order from the underlying motion to strike, finding that the respondent remained the successful party on that motion.

The appellant appealed a trial judgment regarding a profit-sharing agreement for construction projects.

The trial judge found no negligence on one project and that both parties were responsible for the failure to earn a profit on the other, declining to apportion liability or award compensation.

The appellant also argued the trial judge erred in excluding its expert witness for lacking impartiality.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's findings on liability and holding that the exclusion of the expert was a discretionary decision open to the trial judge.