Civil Litigation - Defendant - OCA

The appellant appealed the dismissal of his third party claim for delay.

The third party, a dissolved corporation, had successfully moved to dismiss the claim arising from a 1990 oil spill.

The Court of Appeal held that under section 242(1) of the Business Corporations Act, a dissolved corporation has the capacity to defend an action and bring a motion to dismiss without first being revived.

The Court also upheld the motion judge's finding that the appellant's delay was inordinate, inexcusable, and caused presumed and actual prejudice to the respondent.

The appeal was dismissed.

The appellant appealed a summary judgment dismissing his medical malpractice action against his former family doctor.

The appellant alleged the doctor negligently removed surgical staples from his knee, causing permanent injury.

The Court of Appeal upheld the motion judge's findings that the action was statute-barred, as the appellant knew of the material facts giving rise to the claim more than two years before commencing the action.

The Court also agreed that the claim required expert medical evidence, as it was not one of the clearest of cases where such evidence could be dispensed with.

The appeal was dismissed.

The appellant insurer appealed a summary judgment decision finding that the defendant had cancelled her automobile insurance policy with the respondent insurer prior to a motor vehicle accident.

The appellant argued the motion judge erred regarding the onus of proof, relied on hearsay evidence, and failed to draw an adverse inference.

The Court of Appeal dismissed the appeal, finding the motion judge's conclusion that the policy was cancelled was amply supported by the record, including business records showing the cancellation request and a corresponding credit.

The appellants failed to appear for the hearing of their appeal.

The respondents' counsel advised that the appellants had indicated they would be filing a Notice of Abandonment.

Consequently, the Court of Appeal dismissed the appeal as abandoned.

The respondent perfected a construction lien and set the action down for trial within the two-year limitation period under s. 37(1) of the Construction Lien Act.

However, the respondent failed to file a defence to the appellant's counterclaim before setting the action down, contrary to Rule 48.01 of the Rules of Civil Procedure.

The appellant moved to discharge the lien, arguing the setting down was a nullity.

The Court of Appeal held that setting the action down while pleadings were open was a procedural irregularity curable by Rule 2.01.

Curing the irregularity did not have the effect of extending the strict two-year limitation period, as the action was factually set down within the required timeframe.

The appellant appealed from a Superior Court judgment in a dispute involving family medicine program respondents and universities.

The Court of Appeal held that, assuming amendments to the Regulated Health Profession Act applied, they applied to the College and not to any of the respondents.

The court further held that the action was an abuse of process for the reasons given below.

The appeal was dismissed with fixed costs payable to the respondents.

The appellants appealed a motion judge's refusal to amend their statement of claim to add a proposed defendant and change the location of a slip and fall accident.

The Court of Appeal upheld the motion judge's finding that the claim against the proposed defendant was statute-barred, as the appellants failed to rebut the presumption of discoverability under s. 5(2) of the Limitations Act, 2002.

The Court also agreed that the doctrine of misnomer did not apply because the intended defendant did not know it was the target of the suit.

However, the Court granted leave to amend the statement of claim to change the location of the accident as against the existing defendant.

The appellant appealed a trial judgment finding that she and her husband fraudulently conveyed their matrimonial home to her alone to defeat creditors.

The Court of Appeal upheld the trial judge's findings that the husband had acquired a beneficial interest when the property was previously transferred into joint names to secure a mortgage, and that the subsequent reconveyance to the appellant alone was intended to defeat creditors.

However, the Court allowed the appeal in part regarding interest, reducing the rate from 1% per month to the Courts of Justice Act rate of 3.3% per annum, and changing the start date.

The appellants' farm property was expropriated by the respondent, and the parties settled compensation at $1.3 million, with costs to be assessed under s. 32 of the Expropriations Act.

An assessment officer awarded costs, but a Superior Court Justice reduced the amounts on appeal, finding them unreasonable.

The Court of Appeal allowed the appeal, holding that the Superior Court Justice erred by conducting a rehearing and substituting her own view of what was reasonable instead of applying the proper deferential standard of review.

The assessment officer's awards were reinstated.

The appellants were sued by a credit union for monies owed under a credit facility after an employee stole $30 million.

The appellants counterclaimed against the regulators, FSCO and DICO, seeking contribution and indemnity on the basis that they negligently failed to oversee the credit union.

The Court of Appeal upheld the motion judge's decision to strike the counterclaim, finding that FSCO is not an entity capable of being sued, DICO is protected by statutory immunity, and the appellants had no tenable claim for contribution and indemnity under the Negligence Act because they were not tortfeasors.

The appellants appealed a motion judge's decision dismissing their motion to stay the respondents' litigation based on an arbitration clause in their shareholder agreements.

The respondents argued the parties never reached an agreement on the contents of a schedule, meaning no arbitration agreement existed.

The Court of Appeal allowed the appeal and stayed the litigation, noting that the respondents had not sought a declaration that the agreements were void ab initio, the agreements contained severability clauses making the arbitration clauses separate contracts, and under the Arbitration Act, an arbitral tribunal may rule on its own jurisdiction.

The litigation was stayed except with respect to three companies that were not parties to any shareholder agreement.

The appellants appealed a summary judgment order granting the respondent $60,526.99 for unpaid work.

The Court of Appeal dismissed the appeal, finding that the respondent adduced evidence supporting the outstanding amount and the appellants failed to raise a triable issue.

The Court also upheld the judgment against the various corporate entities controlled by the individual appellant, clarifying the specific amounts recoverable against each entity.

The appellant appealed the judgment of Justice Andra Pollak of the Superior Court of Justice dated April 24, 2008, and the subsequent cost award.

The Court of Appeal agreed with the reasons of the lower court judge and dismissed the appeal, awarding costs to the respondent fixed at $8,000.

The appellant defaulted on two mortgages over her home.

The respondent mortgagee issued a notice of power of sale and entered into an agreement of purchase and sale with a third party.

The appellant's application to enjoin the sale was dismissed.

On appeal, the appellant argued there was no admissible evidence of a valid sale and that the sale was a sham at an undervalue.

The Court of Appeal dismissed the appeal, finding adequate evidence of the sale and no evidence of fraud, bad faith, or a sham transaction.

The Court of Appeal issued an endorsement regarding costs following an appeal concerning the allocation of defence costs between an insurer and an insured.

The respondent, the insured university, was awarded costs on a partial indemnity basis fixed at $25,000, inclusive of disbursements and GST.

Following the release of the appeal decision, counsel requested clarification regarding the costs of the trial.

The Court of Appeal clarified its previous ruling, ordering that the respondent pay the costs of the action at trial, to be fixed by the trial judge, if demanded.

The appellant insurer appealed a decision finding it had a duty to defend the respondent insured.

The key issue was whether the escape of pollutants occurred at a premises owned or occupied by the insured, which would trigger the Absolute Pollutions Exclusion clause.

The Court of Appeal dismissed the appeal, holding that the insured's mere presence for a limited purpose on property occupied and controlled by others did not exclude coverage.

The appellant appealed an order determining that his wrongful dismissal claim was statute-barred.

He received notice of termination on December 12, 1994, with a termination date of January 31, 1995, and commenced his action on January 30, 2001.

The Court of Appeal upheld the motion judge's finding that the breach of the employment contract occurred on December 12, 1994, when the appellant was dismissed without reasonable notice, as alleged in his statement of claim.

The appeal was dismissed with costs.

The infant plaintiff allegedly suffered damages as a result of negligent surgery and follow-up treatment in Quebec while the plaintiffs were residents of that province.

The plaintiffs subsequently moved to Ontario and commenced an action in Ontario.

The defendants brought motions to stay the action on the basis that Ontario courts had no jurisdiction or that Ontario was not a convenient forum.

The motions judge granted the motions and stayed the actions.

The Court of Appeal dismissed the appeal, finding no real and substantial connection between the claim and Ontario, and concluding that Quebec was clearly the more appropriate forum.

The appellants appealed an order of the Superior Court of Justice regarding their right to recovery under a bond.

The Court of Appeal held that naming the appellants on the bond did not give them an independent right to recovery under their lending agreements.

The court declined to interfere with the motion judge's interpretation of the inter-lender agreement and dismissed the appeals with costs.