Civil Litigation - Defendant - OCA

This is a costs endorsement following appeals and cross-appeals in three inter-related actions.

The Court of Appeal had previously granted Samuel Jacob Berkovits' appeal in the "Murder for Hire Action" and dismissed all other appeals and cross-appeals brought by Harold Gerstel and the Gerstel parties.

The parties were unable to agree on costs.

The court found the Berkovits parties to be more successful overall.

It ordered Harold Gerstel to pay $28,000 in all-inclusive costs to Samuel Jacob Berkovits for his unsuccessful cross-appeal in the Murder for Hire Action.

Additionally, the Gerstel parties were held jointly and severally liable to the Berkovits parties for $28,000 in all-inclusive costs for their unsuccessful appeal in the Interference Action.

No costs were awarded in the "Town Crier Action" due to divided success.

Maria Konstan and Samuel Jacob Berkovits had already settled their costs for the Murder for Hire appeal and trial.

The Missanabie Cree First Nation appealed a trial decision that determined the "crystallization date" for calculating their Treaty No. 9 reserve land entitlement was 1906, the year they adhered to the Treaty.

The Court of Appeal dismissed the appeal, affirming that the trial judge correctly interpreted the Treaty's reserve clause and the common intention of the parties, and properly distinguished other treaty cases.

The court also addressed ancillary issues, admitting fresh evidence of a settlement between Canada and MCFN, lifting a sealing order on the settlement, and dismissing Canada's abuse of process motion to dismiss the appeal against it.

This appeal was dismissed as abandoned due to the appellants' failure to appear.

The respondent was awarded costs on a partial indemnity basis.

The appellants sought to overturn a summary judgment granted in favour of the respondent bank, which found no dispute regarding loan and credit card agreements and unpaid funds.

The Court of Appeal dismissed the appeal, deferring to the motion judge's factual findings and finding no legal basis to interfere with the decision, including based on fresh evidence.

The appellant/moving party sought to review a previous order granting security for costs and motion costs.

The Court of Appeal dismissed the review motion, finding no reversible error in the original decision.

The moving party was ordered to post security for costs and pay specified motion costs within 30 days, failing which her further review motion would be automatically dismissed by the Registrar.

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

The appeal was allowed, the summary judgment set aside, and the matter remitted for trial.

The appellant sought an extension of time to bring a motion to a three-judge panel of the Ontario Court of Appeal to appeal a motion judge's decision.

The motion judge had dismissed the appellant's request to set aside a registrar's order dismissing her appeal for delay and awarded costs.

The original appeal concerned a dispute over legal fees.

The Court of Appeal dismissed the appellant's request for an extension of time, finding no valid reason for the delays in perfecting the original appeal or in appealing the motion judge's decision.

The court emphasized that the justice of the cause favoured the respondent.

This is a costs endorsement from the Court of Appeal for Ontario concerning an appeal brought by K. Matthew Hoang against Mann Engineering Ltd. et al.

The Court of Appeal awarded costs of the appeal to the respondents in the amount of $15,000, inclusive of disbursements and all applicable taxes.

The appellants sought to re-open their appeal of a decision dismissing their action against the respondent for terminating a commercial contract.

The appellants sought to advance a new legal argument based on repudiation, which had not been raised at trial or on the initial appeal.

The Court of Appeal dismissed the motion, holding that it would be unfair to permit a new legal issue after more than 10 years of litigation and that re-opening the appeal was not in the interests of justice.

The appellant slipped and fell on ice and snow on the driveway of a rented residential property.

He sued the landlord and later added the tenant as a co-defendant.

The motions judge granted summary judgment dismissing the action against both defendants.

On appeal, the Court of Appeal upheld the dismissal against the tenant, finding the claim was statute-barred because the appellant failed to rebut the presumption that he discovered his claim on the date of the accident.

However, the Court allowed the appeal regarding the landlord, finding genuine issues for trial concerning the interplay between the lease terms, the Occupiers' Liability Act, and the landlord's maintenance obligations under the Residential Tenancies Act.

The appellant appealed the dismissal of his application for a declaration that the respondent lawyer breached the deemed undertaking rule by sharing information about a writ against the appellant with another respondent.

The application judge found no breach because the assignment of the writ occurred before the correspondence disclosing the writ and settlement negotiations.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings.

The court declined to award costs, noting that the respondent lawyer should not have appeared as counsel since he was a named respondent and his conduct was central to the case.

The appellant appealed a motion judge's decision regarding a limitation period.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by failing to address the specific requirements of section 5 of the Limitations Act, 2002, particularly section 5(1)(a)(iv).

The judgment below was set aside and costs were awarded to the appellant.

The appellant condominium developer appealed a trial judgment finding it liable for failing to disclose sufficient information regarding an HVAC equipment lease in a disclosure statement provided to prospective purchasers.

The trial judge held that the failure to include the lease term, total cost, interest rate, and purchase option price violated s. 52(5) of the Condominium Act.

The Court of Appeal allowed the appeal, finding that the disclosure statement accurately disclosed the existence and first-year cost of the lease, which was sufficient to meet the statutory requirements.

The failure to provide further details was not a material omission, and the condominium corporations did not suffer a loss in reliance on the statement.

The appellants appealed a trial judgment enforcing an Indemnity Agreement and collateral demand mortgages.

The Court of Appeal upheld the trial judge's findings that the Indemnity Agreement was a specialty subject to a 20-year limitation period and that the action on the collateral mortgages was brought within the 10-year limitation period, which commenced when moneys were advanced under the primary indemnity obligation.

However, the Court allowed the appeal in part, finding that the trial judge erred by granting judgment on the mortgage covenants for an amount in excess of the primary indemnity debt, as the mortgages were collateral security.

The appellants appealed a summary judgment dismissing their action for negligent misrepresentation.

They alleged the respondents negligently misrepresented that a property severance had been obtained in 1996.

The Court of Appeal dismissed the appeal, finding that even if the representation was made, the appellant knew nothing had been registered.

Under the Planning Act, registration is required for a valid severance.

The court held that the appellants' loss was caused by their own error of law, for which the respondents could not be held accountable.

The appellant appealed a motion judge's refusal to set aside orders authorizing collection procedures and the issuance of a further notice of garnishment.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the orders as the respondent held a valid Ontario judgment against the appellant.

The court held that the appellant was improperly attempting to re-litigate previously made orders.

The plaintiffs commenced a medical malpractice action following the death of Emilio Spirito, naming several hospitals, doctors, and 'Doctors AB, CD, EF, GH'.

After the two-year limitation period under the Trustee Act expired, the plaintiffs sought to amend the claim to substitute the appellants for Doctors AB and CD.

The motion judge allowed the amendment, finding it was a case of misnomer.

The Court of Appeal dismissed the appellants' appeal, holding that correcting a misnomer does not constitute adding a party, and therefore s. 21 of the Limitations Act, 2002 does not bar the amendment.

The appellant was injured in a motor vehicle accident and sought a determination of whether she could recover no-fault medical and rehabilitation benefits beyond the 10-year benefit period under the Statutory Accident Benefits Schedule, provided the need for such expenses was established with certainty within the 10-year period.

The Court of Appeal held that the plain meaning of section 6(1) of the SABS requires that the expenses result within the benefit period.

Therefore, expenses for treatments and services provided beyond the 10-year anniversary of the accident are not recoverable.

The appeal was dismissed.

The Ontario Public Service Employees Union (OPSEU) brought a motion for a stay of an order restraining its members from picketing at courthouses during a lawful strike, pending an application for leave to appeal to the Supreme Court of Canada.

OPSEU argued that peaceful informational picketing is a protected form of expression under s. 2(b) of the Charter and that a total ban was unnecessary.

The court applied the RJR-MacDonald test for granting a stay.

While tentatively accepting jurisdiction as a single judge to hear the motion, the court dismissed the motion on the balance of convenience branch.

The court held that the public interest in ensuring unimpeded access to the courts, as established in BCGEU, outweighed the harm flowing from the infringement of the picketers' constitutional rights.

The self-represented appellant appealed four Certificates of Assessment of Costs issued by an assessment officer following the dismissal of his earlier appeal.

The appellant raised numerous objections, including allegations that the respondents' claims for costs were fraudulent, that one corporate respondent did not exist, and that the assessment officer demonstrated bias.

The Court of Appeal dismissed the appeal, holding that the assessment officer's duty was to assess costs in accordance with the court's order, not to look behind it or review the underlying basis of the claims.

The court found no foundation for the appellant's allegations of fraud or bias.