Civil Litigation - Defendant - OCA

This appeal concerns the admissibility of participant expert evidence in a civil jury trial involving allegations of sexual assault.

The respondent sued for damages for sexual assaults allegedly committed in the mid-1990s.

A mental health clinician who treated the respondent in prison was permitted to give evidence as a participant expert.

The trial judge admitted the clinician's unredacted reports and allowed him to testify about their contents.

The Court of Appeal found that the clinician exceeded the proper scope of a participant expert by providing opinions on whether the alleged sexual assaults occurred and whether the respondent suffered harm caused by such assaults.

The court held that these opinions failed to meet the threshold requirements for admissibility under the Mohan/White Burgess test and that their prejudicial effect outweighed their probative value.

A new trial was ordered.

The appellants retained Birkshire Group Inc. to perform home renovation work.

After the relationship deteriorated, Birkshire registered a construction lien and sued for the balance owing.

The appellants counterclaimed and sued other respondents.

At trial, the judge awarded Birkshire damages and recognized a lien.

The appellants appealed, arguing the trial judge failed to address evidence from two witnesses called after the close of evidence.

The trial judge had determined this evidence was material to credibility issues but made no reference to it in his reasons.

The Court of Appeal found the trial judge's reasons deficient and allowed the appeal, ordering a new trial.

The appellant mortgaged a golf course property to the respondent for $2,700,000.

After the appellant defaulted on the mortgage, the respondent obtained a default judgment for foreclosure and took possession of the property.

The appellant subsequently moved to set aside the default judgment and sought relief from forfeiture.

The motion judge dismissed the motion, finding no reasonable prospect of payment, no evidence of ability to redeem, and no special circumstances warranting equitable intervention.

The Court of Appeal upheld the dismissal, distinguishing the case from Winters v. Hunking on the basis that the appellant provided no appraisal evidence of property value or equity, the property was investment property rather than a family homestead, and the appellant's delay was inadequately explained.

An appeal from a trial judgment finding that the respondents had established title to a disputed strip of land by adverse possession.

The appellants challenged the trial judge's factual findings regarding the presence of a chain link fence that defined the boundary during the relevant ten-year period.

The appellants also sought to introduce fresh evidence consisting of expert opinion based on aerial photographs.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error in the factual findings and rejecting the motion to adduce fresh evidence as late-filed and insufficiently reliable.

This is a costs endorsement on appeal.

The appellant appealed an order from the Superior Court of Justice dated March 24, 2016.

The Court of Appeal, in accordance with the agreement of counsel, awarded costs to the respondents in the amount of $10,000, all inclusive.

The appellants appealed a trial judgment upholding a Sharia Law-based arbitration award rendered in Iran regarding a property dispute between brothers.

The trial judge found that the appellants had clearly agreed to be bound by the arbitrator's judgment, all four conditions for a binding Sharia Law ruling had been met, and the appellants were estopped from relitigating the same issues in Ontario.

The appellants argued the International Commercial Arbitration Act should apply, but the trial judge found the application was out of time and, in any event, there was no unfairness in the arbitral proceeding.

The Court of Appeal upheld the trial judgment, finding no error and deferring to the trial judge's factual findings.

The appellant appealed the dismissal of his action for damages arising from a 2009 fire.

The motion judge had dismissed the action as statute-barred because the statement of claim was issued in September 2013, outside the two-year limitation period.

The Court of Appeal dismissed the appeal, finding that the discoverability principle did not assist the appellant as he was aware of his psychological difficulties by July 2011.

The appellant appealed a summary judgment granting specific performance of an easement agreement in favour of the respondent.

The parties had signed an 'Easement Summary' to provide road access to the respondent's water-access-only property, but the appellant later refused to finalize the formal easement, demanding additional consideration including a severed lot.

The Court of Appeal upheld the motion judge's findings that the Easement Summary was a binding preliminary agreement containing all essential terms, that there was no genuine issue for trial, and that specific performance was the appropriate remedy.

The appeal and the motion for leave to appeal costs were dismissed.

The applicant commenced an action against York University, which was struck by a Superior Court judge.

The applicant then brought an ex parte motion before another Superior Court judge to set aside the dismissal, which was denied.

The applicant appealed this denial, but the appeal was dismissed for delay by the Registrar.

A single judge of the Court of Appeal refused to set aside the Registrar's order.

On a motion to review the single judge's decision, a panel of the Court of Appeal dismissed the motion, finding no merit to the underlying appeal because the second Superior Court judge had no jurisdiction to set aside the first judge's order.

The respondent farmer sued the appellant municipality for negligence after the municipality forced him to remove his wild boar herd under a by-law.

The farmer amended his claim to allege the municipality owed him a duty of care under the Farming and Food Production Protection Act, 1998, which exempts 'normal farm practices' from municipal by-laws.

The municipality moved to strike the negligence claim.

The Court of Appeal upheld the lower courts' decisions allowing the claim to proceed, finding that while the statute does not impose an explicit duty of care, the municipality may owe a common law duty of care to the farmer when enforcing by-laws that could restrict farming operations.

The appellant sought to appeal an order dismissing its motion for summary judgment to the Court of Appeal, arguing that a finding of law in the motion judge's reasons regarding relief from forfeiture constituted a final order.

The Court of Appeal held that the order was interlocutory and that, following recent jurisprudence, an order must contain any finding of law intended to be final to confer jurisdiction on the court.

The court concluded the order was not final and dismissed the appeal for lack of jurisdiction.

The appellants sued the respondents for defamation and abuse of public office after the Competition Bureau announced bid-rigging charges against them in a press release and to the media.

The motion judge struck the defamation claim under Rule 21.01(1), finding the statements were a fair characterization of the charges and incapable of bearing a defamatory meaning.

The Court of Appeal allowed the appeal in part, holding that whether the statements were a fair characterization was a factual issue for trial, but struck the portion of the claim relating to Ontario media publications because the appellants failed to provide the required notice under section 5(1) of the Libel and Slander Act.

The appellants appealed a trial decision finding them liable for defamation and awarding the respondent $50,000 in general damages and $25,000 in punitive damages arising from articles published in a newspaper.

The Court of Appeal upheld the liability finding, noting the appellants admitted to publishing the articles in their statement of defence.

The court also upheld the general damages award, finding it generous but within the acceptable range for mental suffering.

However, the court set aside the punitive damages award, concluding that malice was neither pleaded nor proven, and the lack of an apology alone did not justify punitive damages.

The court issued a supplementary endorsement to address the costs of an appeal that was previously allowed.

The court fixed the costs of the appeal and the application below at $10,500, inclusive of disbursements and taxes, payable by the respondents to the appellant.

The appellant appealed a motion judge's order that permanently stayed certain allegations in an assessment of costs proceeding and required her to order transcripts as a condition of proceeding.

The Court of Appeal upheld the stay of allegations relating to the mortgagee's solicitor's alleged refusal to allow mortgage redemption, noting such issues must be litigated between the mortgagor and mortgagee, not on an assessment of the solicitor's costs.

However, the Court set aside the transcript requirement as the necessary transcript was already available, and ordered each party to bear their own costs.

The appellants appealed a summary judgment enforcing a debenture, arguing that a factual dispute over the exercise of an option and a claim for equitable set-off based on alleged misrepresentations raised triable issues.

The Court of Appeal dismissed the appeal, finding that the debenture created a stand-alone debt unaffected by the option agreement, and that the alleged misrepresentations did not go to the root of the respondent's claim.

The appellants appealed the dismissal of their motion under Rule 59.06(2) of the Rules of Civil Procedure to set aside forfeiture orders made under the Civil Remedies Act, 2001.

The forfeiture orders were granted after the appellants failed to comply with a peremptory timetable to respond to the Attorney General's application.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellants' failure to obtain necessary bank documentation did not constitute 'facts arising or discovered' after the order was made, and thus Rule 59.06(2) did not apply.

The appellant bank appealed a trial judgment holding it liable for the unauthorized transfer of $4 million of the respondent's funds.

The appellant argued the trial judge erred by relying on hearsay evidence to reject its defences of acquiescence, ratification, and contributory negligence, by failing to draw an adverse inference, and by not reducing damages.

The Court of Appeal dismissed the appeal, finding the out-of-court statements were properly admitted to show the respondent's state of mind, not for their truth.

The court also upheld the trial judge's findings on the adverse inference and damages.

The appellant auditor appealed a trial judgment finding it liable for professional negligence, challenging the scope of duty, causation, contributory negligence, and damages calculation.

The respondent cross-appealed regarding dividends, prejudgment interest, and inevitable losses.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no palpable error in the trial judge's findings of fact and concluding that the trial judge correctly determined the scope of the auditor's duty to warn the respondent of significant weaknesses in its Loans Department.

The appellant appealed the dismissal of its negligent misrepresentation action arising from purchases of Confederation Life commercial paper through the respondent bank.

The court held that, in the context of dealings between sophisticated commercial parties, the bank's duty of care was limited to accurately supplying the specific information requested in the quoting exercise, not broader investment-related information.

The court further held that stating the D.B.R.S. rating as R1 low was not inaccurate or misleading merely because the rating had been placed under review with negative implications.

The appeal was dismissed with costs.