Civil Litigation - Defendant - OCA

The appellants, Robin and Jennifer Lacey, appealed a decision dismissing their application for declaratory relief and a Writ of Possession concerning a 99-year lease held by the respondent, Kakabeka Falls Flying Inc., over a portion of their property.

The appellants argued the lease violated the Planning Act.

The application judge found the lease commenced prior to May 2, 1968, thus exempting it from the Planning Act's subdivision prohibition, and that the appellants' claim was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld these findings, dismissing the appeal and awarding costs to the respondent.

York University sought security for costs of an appeal brought by Michael Markicevic, who was found at trial to have defrauded York of over $1.8 million and made fraudulent conveyances of property.

Markicevic appealed on two grounds: the validity of a mutual release signed upon his termination and whether York's claims were statute-barred.

The motion judge ordered security for costs of $75,000 under Rule 61.06(1)(c), finding that while the appeal was not frivolous and vexatious, the unchallenged findings of fraud and asset dissipation constituted compelling "other good reason" to order security despite Markicevic's impecuniosity.

The appellant was injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer paid income replacement benefits but denied non-earner benefits in 2004.

After income replacement benefits were terminated in 2006, the appellant sought non-earner benefits in 2009 and commenced an action in 2012.

The motion judge granted summary judgment dismissing the action as time-barred.

The Court of Appeal upheld the decision, confirming that the two-year limitation period for non-earner benefits began to run when the insurer initially refused them in 2004, even while the appellant was receiving income replacement benefits.

The moving parties (defendants) sought a stay of a motion judge's order dismissing their jurisdictional challenge as an abuse of process, pending their appeal of that order.

They also sought an extension of time to perfect the appeal.

The Court of Appeal applied the RJR-MacDonald test and granted the stay, finding that the appeal raised serious issues regarding jurisdiction and joinder, that there was some risk of irreparable harm due to the uncertain law on attornment, and that the balance of convenience favoured the moving parties.

The extension of time was also granted on consent.

The appellant homeowner made a claim against his insurer for flood damage, submitting a proof of loss without supporting documentation.

The insurer invoked the statutory appraisal process and successfully moved for an order compelling the appellant to submit to an examination under oath and produce documentation.

The appellant appealed, arguing the appraisal process extinguished the insurer's right to examine him.

The Court of Appeal dismissed the appeal, holding that the appraisal process does not oust the insurer's contractual right to examine the insured, and the court has inherent jurisdiction to make procedural orders to give effect to the statutory scheme.

The appellants brought a proposed class action against a washing machine manufacturer, alleging that its front-loading machines were defectively designed and prone to developing mould and unpleasant odours.

They sought damages for pure economic loss, asserting claims for breach of express and implied warranties, breach of the Competition Act, negligence, and waiver of tort.

The Court of Appeal upheld the motion judge's decision to dismiss the certification motion, finding that none of the claims disclosed a reasonable cause of action.

Notably, the court held that policy considerations negate recognizing a duty of care in tort for pure economic loss arising from a defective, non-dangerous consumer product.

The appellants appealed from a judgment dismissing their action and declaring the appellant a vexatious litigant under s. 140 of the Courts of Justice Act.

The Court of Appeal agreed with the reasons and conclusions of the motion judge and dismissed the appeal, awarding costs to the respondents.

The appellant appealed an order granting his mother, the titled owner, leave to issue a writ of possession requiring him to vacate her home.

The appellant claimed an interest in the home via constructive trust based on oral promises and work he performed, but he had not commenced a counter-application or action.

The Court of Appeal dismissed the appeal, finding that the only issue before the court was the title holder's right to possession, making the appellant's constructive trust evidence irrelevant to the application.

The appellant appealed a decision finding its claim for recovery of repair costs for a deficient sewer system was statute-barred.

The Court of Appeal agreed that the essence of the claim was a breach of duty in 1986 requiring repairs in 2003, and found no basis to interfere with the lower court's decision.

The appeal was dismissed with costs awarded to the respondent.

The appellant property owner appealed a summary judgment declaring that the respondent cottagers had acquired a prescriptive easement over a laneway owned by the appellant.

The appellant argued the motion judge erred by failing to apply the principle of illegality regarding a municipal by-law and by finding sufficient evidence of winter use.

The Court of Appeal dismissed the appeal, finding no connection between the alleged by-law breach and the easement issue, and no palpable and overriding error in the motion judge's treatment of the evidence of continuous year-round use.

The appellant subcontractor caused a fire while using an acetylene torch on an apartment building.

The trial judge found the appellant negligent but also found the respondent general contractor had instructed him to proceed despite the danger, apportioning fault 50-50.

On appeal, the Court of Appeal upheld the dismissal of the volenti non fit injuria defence but reapportioned fault 75% to the respondent and 25% to the appellant, citing the power imbalance between the parties.

The Court also reduced the damages award, finding that legal fees incurred by the respondent in litigation with its insurer were too remote to be recoverable.

The respondents brought a motion to quash the appellant's notice of appeal, which was filed significantly out of time for decisions on the merits and somewhat out of time for a costs decision.

The appellant appeared and claimed circumstances supporting an extension of time but failed to file an affidavit in response to the motion.

The Court of Appeal granted the motion and quashed the appeal without prejudice to the appellant's right to move for an extension of time on proper material, awarding costs of the motion to the respondents.

The appellant brought a motion to review an order of a single judge of the Court of Appeal requiring him to post security for costs.

The Court of Appeal dismissed the motion, finding no error in the motion judge's decision.

The court noted that the appellant's impecuniosity did not preclude the order, as the conditions in Rule 61.06 were met and the history of the litigation supported the finding that the appeal appeared frivolous and vexatious.

The motion was dismissed with costs fixed at $2,500.

The appellants appealed a judgment regarding the interpretation of an amended agreement and the definition of an encumbrance.

The Court of Appeal dismissed the appeal, finding that the clear intention of the parties was for the respondent to receive $61,000 out of the net proceeds of sale.

Costs were awarded to the respondent.

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

On consent, the Court of Appeal allowed the appeal and granted the appellants leave to amend their statement of claim in accordance with the Notice of Appeal.

Costs were awarded to the appellants in the cause on a partial indemnity basis.

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

The Court of Appeal agreed entirely with the reasons of the motion judge and dismissed the appeal, awarding costs to the respondent in the amount of $1,000.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal determined it lacked jurisdiction to hear the appeal under section 19 of the Courts of Justice Act, as the appellant's claim was granted but damages under certain heads were not awarded, keeping the amount in issue below the jurisdictional threshold.

The appeal was transferred to the Divisional Court.

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

On consent, and in view of the disposition of related appeals, the Court of Appeal allowed the appeal in accordance with the consent terms set out in the filed draft order, without expressing any view on the correctness of the judgment appealed from.

The appellants challenged an order refusing relief from a default judgment and raised issues concerning notice of a sale and prior proceedings, as well as the interpretation of the Conveyancing and Law of Property Act.

The court held that the motion judge reasonably found one appellant had not moved promptly enough to set aside the default judgment.

It also upheld the factual finding that the other appellant had notice of both the sale and earlier proceedings.

The statutory interpretation argument was rejected, and the appeal was dismissed with costs.

The appellants challenged a trial judgment arising from a slip and fall in a hospital parking lot during winter conditions.

The sole issue on appeal was whether the trial judge materially misapprehended the facts in finding that the respondent hospital had a reasonable maintenance system for plowing, salting and sanding.

The court reviewed the evidentiary record, including photographs and a video entered by the plaintiffs, and held that the findings that the area had been sanded and salted the previous day were supported by the record.

The appeal was dismissed with costs.