Civil Litigation - Defendant - OCA

The appellants appealed an order dismissing their 14-year-old medical malpractice action for delay under Rule 48.14.

The Court of Appeal upheld the dismissal, finding the hearing judge properly applied the two-part test requiring an acceptable explanation for the delay and no non-compensable prejudice.

The court agreed that the appellants failed to provide a satisfactory explanation for a delay of almost 11 years since the delivery of the statement of defence.

The appellant appealed a summary judgment dismissing her action against the police for negligent investigation.

The appellant alleged the police negligently failed to send a needle for communicable disease testing.

The Court of Appeal dismissed the appeal, finding no basis for a negligence claim because uncontroverted evidence showed that testing the needle was impossible or unreliable, meaning no damages flowed from the failure to test.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellants were ordered to pay costs to the respondent Diocese in the amount of $20,000, inclusive of disbursements and taxes.

The appellants brought a motion to stay their own appeal pending the trial judge's determination of several outstanding issues following a complex, multi-party trial involving allegations of fraudulent conveyance and conspiracy.

The respondents opposed the stay, arguing the issues relating to them were discrete and finally disposed of.

The Court of Appeal held that the 'interests of justice' test, rather than the RJR-Macdonald test, applies when a party seeks to stay an appeal pending another body's decision.

Balancing the need for expeditious justice against the benefits of a single appeal, the court granted a 120-day stay of the appeal, on the condition that the appellants immediately order the necessary transcripts.

The respondent on appeal moved to lift the automatic stay pending appeal and for security for costs against the appellants, a corporation and its sole shareholder.

The corporate appellant had filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act, triggering a stay of proceedings under s. 69(1)(a).

The court declined to make an order against the corporation due to the bankruptcy stay.

However, the court lifted the automatic stay against the individual appellant for the undisputed principal amount of $620,000 and ordered her to post $150,000 as security for costs, citing the trial judge's negative findings regarding her dishonesty and knowing assistance in the corporation's breach of fiduciary duty.

The respondent on appeal brought a motion for security for costs of the appeal.

The moving party had successfully applied to enforce Russian arbitration awards against the appellant in Ontario.

The Court of Appeal dismissed the motion, holding that a respondent on appeal cannot rely on Rule 61.06(1)(b) to obtain security for costs against a defendant/appellant, as no party should have to give security simply to defend itself.

Furthermore, the moving party could not use the 'other good reason' provision in Rule 61.06(1)(c) to bypass this restriction.

The respondent obtained a Norwich order for pre-action discovery against the appellants to investigate alleged fraudulent conveyances and misrepresentations following a failed corporate acquisition.

The appellants appealed the order.

The Court of Appeal allowed the appeal and set aside the Norwich order, finding that the motion judge erred in principle by failing to consider whether the pre-action discovery was necessary.

The Court held that the respondent already possessed sufficient information to formulate a pleading and that the extraordinary equitable remedy of a Norwich order was not required.

The appellant appealed a decision declaring that the arbitration clause in its Alliance Agreement with the respondent did not require a party to file a notice of request to arbitrate with the Arbitration and Mediation Institute of Ontario to commence arbitration.

The Court of Appeal allowed the appeal, finding that the application judge erred in his interpretation of the arbitration clause.

The Court held that the standard of review for contractual interpretation in this case was correctness, and that the clear wording of the agreement required the arbitration to be conducted under the 'then-current rules' of the Institute, which mandated filing a notice with the Institute to commence proceedings.

The appellants brought an action in the Superior Court claiming they were exempt from paying GST on certain financial services under the Excise Tax Act.

The respondent successfully moved for summary judgment on the basis that the Tax Court of Canada had exclusive jurisdiction.

On appeal, the appellants argued the Superior Court had constitutional or concurrent jurisdiction.

The Court of Appeal dismissed the appeal, finding the claim was not constitutional in nature and that the Tax Court of Canada Act, read with the Excise Tax Act, clearly gave the Tax Court exclusive jurisdiction over GST rebate claims.

The appellants appealed a trial judgment regarding adverse possession and the subsequent costs award based on an offer to settle.

The Court of Appeal dismissed the appeal, finding that the trial judge applied the proper test for adverse possession and made factual findings well supported by the record.

The trial judge's view of the offer to settle was also deemed reasonable.

The appellant appealed the dismissal of her claims against her employer for wrongful dismissal, discrimination, and negligent administration of her long-term disability policy, and against her insurer for wrongful denial of benefits.

The Court of Appeal upheld the trial judge's findings that the employer's outsourcing and four-month working notice were reasonable, and that the employer had no obligation to reinstate her to full-time work.

The Court also agreed that the appellant failed to satisfy the 120-day elimination period for disability benefits and that the insurer was justified in stopping payments based on medical evidence.

The appeal was dismissed.

The appellants appealed a decision dismissing their claim for fee simple title to a disputed property based on adverse possession.

The appellants had occupied the land and built a cottage under a 40-year written agreement with the respondent's father, paying an annual fee and property taxes.

The Court of Appeal upheld the trial judge's finding that the appellants' occupation was by permission, not adverse, open, and notorious possession with the intent to exclude the owner.

The appeal was dismissed.

The appellants appealed a decision denying them defence cost coverage under a Professional Liability Insurance Policy provided by LawPro.

The motion judge found that the appellant acted as an intermediary between the parties in arranging mortgage transactions, triggering the mortgage broker exclusion.

The Court of Appeal agreed, finding that the appellant's actions as a middleman in arranging the mortgages meant the claim fell within the exclusion.

The appeal was dismissed with costs.

The appellants, represented by pro bono counsel, were successful on appeal and sought costs.

The respondents opposed, arguing that pro bono counsel should not receive costs.

The Court of Appeal held that there is no prohibition on awarding costs in favour of parties represented by pro bono counsel in private actions.

The Court recognized 'facilitating access to justice' as a fifth purpose of costs awards.

Costs of $4,500 were awarded to the appellants.

The appellant appealed a trial judgment dismissing its claim on a personal guarantee.

The respondent, a bookkeeper, signed a document described to her as being for 'standard credit information' without reading the small print containing the guarantee.

The Court of Appeal upheld the trial judge's application of the Tilden v. Clendenning principle, finding that the appellant knew or ought to have known the respondent would not read the form and did nothing to bring the guarantee to her attention.

The appeal was dismissed.

The appellants' parked motor vehicle was destroyed by a fire allegedly caused by a transmission fluid leak.

The motion judge granted summary judgment dismissing the action as statute-barred by the two-year limitation period in s. 206(1) of the Highway Traffic Act, relying on the binding precedent of Karakas v. General Motors of Canada Ltd. The Court of Appeal dismissed the appeal, holding that while there was arguable merit to the appellants' claim that Karakas was at odds with Supreme Court of Canada jurisprudence, the court was not asked to overrule Karakas and the present case could not be distinguished from it.

The appellant appealed a jury verdict awarding the elderly respondents damages, including $250,000 each in general non-pecuniary damages, after an oil spill destroyed their home.

The appellant argued that a mistrial should have been declared due to prejudicial evidence regarding insurance and settlement negotiations, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding no unfair prejudice to warrant a mistrial and concluding that while the general damages award was high, it was reasonably open to the jury given the devastating impact of the loss of the respondents' home.

The moving party requested a reconsideration of the Court of Appeal's judgment released on November 16, 2005.

The Court agreed to hear oral submissions on the request.

The Court ordered that the judgment be temporarily stayed pending the disposition of the reconsideration motion, allowing the endorsement to be registered on the title of the property in issue.

The appellants appealed a trial judgment finding they breached their contract with the respondents by failing to perform their obligations in good faith during the notice period.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the appellants breached the contract by assisting a third party in taking the respondents' business away.

The court also dismissed the appellants' argument regarding insufficient proof of damages, as well as the respondents' cross-appeal concerning the damages calculation and the dismissal of a conspiracy claim.

The respondents were entitled to costs of the appeal on a party and party basis.

The only outstanding issue was whether the Attorney General should be awarded costs of the cross-appeal on the section 15 issue, which the respondents had raised and lost.

The Court of Appeal awarded the respondents costs of the appeal against the Attorney General on a party and party basis, and awarded the Attorney General costs of the cross-appeal against the respondents on a party and party basis.