Civil Litigation - Defendant - OCA

In an appeal arising from a failed residential real estate transaction, the appellants challenged the dismissal of their third-party negligence claim against their real estate agent and brokerage.

The Court of Appeal held that the trial judge erred by confining the analysis to whether the agent had actively misled the appellants, without determining whether the agent negligently failed to advise them of the consequences of breaching the agreement and failed to address misleading communications with the vendors.

The court also held it was erroneous to rely principally on signatures and initials on the agreement to infer that the agreement had been adequately explained, without resolving whether the appellants reasonably misunderstood its effect.

Because the appeal record required factual and credibility findings that an appellate court should not make, a new trial before a different judge was ordered.

The costs order below was set aside, and the appellants received $20,000 in appeal costs.

The appellant sought review of a single judge’s refusal to award costs after granting an extension of time to perfect an appeal.

Applying the deferential standard under s. 7(5) of the Courts of Justice Act, the panel held that intervention is available only for an error in principle, failure to identify the applicable principles, or an unreasonable result.

The panel rejected the request to remove comments about the apparent weakness of the underlying appeal, holding that merits were relevant to both the extension and costs determinations.

The review motion was dismissed, and costs were awarded to two responding parties.

The parties settled a civil appeal and an associated motion to produce fresh evidence.

On consent, the Court of Appeal dismissed both proceedings with prejudice and without costs.

As part of the settlement, Ontario undertook not to enforce the $3,000 costs award made below.

The court directed that the order issue on consent in accordance with the settlement terms.

The appellant appealed the dismissal of its action arising from the termination of a memorandum of understanding concerning a proposed national memorial.

The appellant conceded that its damages claim was statute-barred but argued that its claim for declaratory relief was exempt from the two-year limitation period under the Limitations Act, 2002.

The Court of Appeal agreed with the motion judge that the requested declaration would serve no practical purpose and was being advanced to circumvent the limitation period.

The court also agreed that no statutory exemption applied and upheld the summary judgment dismissing the action.

The appellant appealed the dismissal of his action against an investigator appointed by the Chartered Professional Accountants of Ontario.

The motion judge had found the lawsuit was a collateral attack on the Discipline Committee's decision to revoke the appellant's designation, and was an abuse of process.

The Court of Appeal upheld the decision, finding no error in the motion judge's conclusions or in his discretionary decision to deny an adjournment.

The appellants challenged an order striking their negligence claim against the federal respondent arising from the issuance of a firearms licence to the shooter.

The court held that the Firearms Act did not itself create a private law duty of care, but that an arguable duty could arise from a combination of statutory duties and pleaded facts showing the respondent knew or ought to have known the licence holder posed a risk to the deceased or to a narrow and particularized group including him.

Because such a claim was not impossible to plead, it was not plain and obvious that the action could not succeed.

The appeal was allowed to the extent of varying the order to strike the pleading with leave to amend, and appeal costs were awarded to the appellants.

The Crown breached its fiduciary duty in 1886 by making an improvident sale of the appellant's timber rights.

The trial judge valued the timber rights at $31,600 and awarded simple interest adjusted for inflation, denying the appellant's claim for equitable compensation including compound interest.

The Court of Appeal upheld the valuation but allowed the appeal on compensation, finding that the trial judge erred in failing to compensate the appellant in equity for its lost opportunity to have the funds invested.

The Court held that an award of equitable compensation including compound interest is not barred by the Crown's historic immunity from paying interest, and ordered a new hearing to determine the appropriate compensation.

The plaintiff suffered severe brain damage following an unprovoked assault by his brother-in-law at the matrimonial home.

The plaintiff sued his estranged wife and her brother.

Both defendants failed to defend the action and were noted in default.

At the assessment of damages hearing, the trial judge awarded damages against the brother but dismissed the action against the wife, finding no basis for liability.

The Court of Appeal allowed the plaintiff's appeal in part, holding that under Rule 19.02(1), a defendant noted in default is deemed to admit the allegations of fact in the statement of claim, and a trial judge cannot inquire into liability during a damages assessment.

Both defendants were found jointly and severally liable.

The appellant sold a surplus grain terminal to a purchaser with an agreement intended to include a restrictive covenant preventing the property's use for grain handling.

The property was later sold in a tax sale to a new purchaser who intended to use it for grain handling.

The appellant sued for a declaration that the restrictive covenant ran with the land and sought rectification of the original agreement if the covenant was found defective.

The motion judge struck out the rectification claim as disclosing no reasonable cause of action and declared the covenant did not survive the tax sale.

The Court of Appeal allowed the appeal, finding that it was not plain and obvious that the rectification claim could not succeed, and set aside the declaratory orders.

The respondent financial advisory firm was engaged by the appellant trust company to raise debt or equity financing.

The agreement permitted the appellant to sell its assets without obligation to the respondent.

After the respondent obtained a letter of interest from a bank, the appellant terminated the engagement, paid the contractual fees, and later sold its assets to the bank.

The trial judge awarded the respondent $420,000 for unjust enrichment.

The Court of Appeal allowed the appeal and dismissed the action, finding that the respondent failed to establish an enrichment, a corresponding deprivation, or the absence of a juristic reason, as the services were not freely accepted for an asset sale and the respondent had no reasonable expectation of compensation beyond the contract.

The appellant appealed a judgment ordering him to repay a $90,000 loan to the respondent estate.

The appellant argued the action was barred by the six-year limitation period because the loan arose from a promissory note with a fixed repayment date of November 30, 1990.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the debt was a continuing one and that the appellant had acknowledged the debt on multiple occasions, taking it outside the limitation period.

The appellants appealed a decision enforcing letters rogatory issued by a California court against non-parties in Ontario.

The motion judge had found the evidence of the Ontario residents to be relevant and narrowed the scope of documentary production.

The Court of Appeal found no error in the motion judge's findings and dismissed the appeal.

The appellants appealed a judgment confirming a Master's report on an accounting of music royalties for the song 'When I Am With You'.

The Court of Appeal dismissed the corporate publisher's appeal regarding the calculation of co-publishing revenues and prejudgment interest.

However, the Court allowed the appeal of the corporation's directing mind, finding no basis to pierce the corporate veil and hold him personally liable.

The Court also allowed the respondents' cross-appeal, finding that performing rights royalties should be included in the calculation of co-publishing revenues based on the plain meaning of the agreement and the parties' prior conduct.

The appellant appealed an assessment of a party-and-party bill of costs for a motion for leave to appeal and a one-day appeal.

The Assessment Officer had assessed the successful respondent's counsel fee at $35,000.

The Court of Appeal found the assessed counsel fee to be unreasonably high, noting that the appeal involved a single question of law on uncontested facts that had already been argued in the Divisional Court.

The appeal was allowed and the counsel fee was reduced to $17,500.

The appellant was catastrophically injured in a motor vehicle accident while a passenger in an uninsured vehicle.

He sought indemnity from the respondent insurer under a policy issued to a man with whom he lived in a de facto parent-child relationship.

The motions judge granted summary judgment dismissing the claim, finding the appellant was neither a 'person insured under the contract' under s. 265 of the Insurance Act nor a 'relative' under the OPCF 44 endorsement.

The Court of Appeal allowed the appeal, holding that the definition of 'insured' in s. 224(1) applies to s. 265, and that 'relative' in the endorsement should be interpreted liberally to include a de facto parent-child relationship, provided dependency is proven at trial.

The insured permitted an unlicensed driver to operate a vehicle he had control over, resulting in a motor vehicle accident.

The injured party's insurer brought a third-party claim against the insured for negligent entrustment.

The insured sought a declaration that his homeowner's insurance policy covered the claim and obliged the insurer to defend him.

The Court of Appeal held that the insured's act of permitting another to drive constituted 'use' of the vehicle, which fell squarely within the policy's exclusion for claims arising from the ownership, use, or operation of a motorized vehicle.

The insurer had no duty to defend.

The appellant was arrested and detained in Canada pursuant to an extradition request by the Federal Republic of Germany.

He subsequently brought a civil action against Germany and Canada claiming damages for mental distress and restriction of liberty.

Germany successfully moved to dismiss the action on the basis of sovereign immunity.

On appeal, the appellant argued that Germany had submitted to the court's jurisdiction by initiating the extradition proceedings and that his claim fell within the 'personal injury' exception under the State Immunity Act.

The Court of Appeal dismissed the appeal, holding that extradition proceedings are distinct from the civil suit and that the 'personal injury' exception requires physical injury.

The respondents purchased shares in a company from Mader and subsequently sued Mader and the company's accountants, Peat Marwick Thorne, for misrepresentation and breach of fiduciary duty regarding the company's financial status.

The trial judge awarded damages against all defendants.

The accountants appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in finding a fiduciary relationship and that the purchasers did not rely on the accountants' financial statements, having preferred to rely on Mader's assurances.

The appellant landlord sued the respondent, a competing landlord, for inducing breach of contract after a tenant abandoned the appellant's building and signed a new lease with the respondent.

The tenant had previously threatened to terminate its lease due to the appellant renting space to an abortion clinic.

The Court of Appeal upheld the summary judgment dismissing the action, finding no genuine issue for trial because the evidence showed the tenant had already decided to terminate its lease before any contact with the respondent.

The appellants brought a motion for an order directing the trial of certain issues allegedly outstanding from a 1993 judgment based on Minutes of Settlement.

The motions judge directed a trial on only some issues and stayed a subsequent 1999 action.

The Court of Appeal dismissed the appeal, finding the appellants failed to meet their evidentiary burden to support the requested order.