Civil Litigation - Defendant - OCA

The Court of Appeal for Ontario dismissed Michelle Botosh’s appeal from the order striking out her 2023 action against members of the defence team from her earlier personal injury litigation.

The court found the new action was a collateral attack on the 2013 judgment and an abuse of process.

The court also upheld the motion judge’s findings regarding witness and lawyer immunity, the absence of a privacy claim, and the reasonableness of the costs award.

The appellant, Gaurav Tewari, appealed the decision of the motion judge who permanently stayed his action as a duplicative pleading and an abuse of process.

The motion judge also struck the claim under rules 21.01(3)(c), 21.01(3)(d), and 25.11 of the Rules of Civil Procedure, finding it contained no reasonable cause of action and was frivolous, vexatious, and an abuse of process.

Leave to amend was refused.

The Court of Appeal found no error in the motion judge’s decision and dismissed the appeal, awarding costs to the respondent.

The moving party sought to review a December 2, 2022 order of a single judge of the Court of Appeal and requested an adjournment at the hearing.

The Court dismissed the adjournment request as unfounded.

The review motion itself was found to be without merit, as the original order contained no error and was, in fact, helpful to the moving party by providing directions, relief from rules compliance, and an extension to perfect a motion for leave to appeal.

The review motion was dismissed, and the moving party was granted a final 30-day extension to perfect his motion for leave to appeal, with costs awarded to the responding party.

The appellant challenged the Toronto Police Services' (TPS) authority to impose bag searches as a condition of entry into Allan Gardens during the 2010 G20 summit, alleging tortious conduct and Charter breaches.

The Court of Appeal found that the TPS lacked legal authority, as agents of the City under the Trespass to Property Act, to create such a condition.

The court held that the police conduct infringed the appellant's freedom of expression (s. 2(b)), right against arbitrary detention (s. 9), and right against unreasonable search and seizure (s. 8) under the Charter.

The appeal was allowed, and the appellant was awarded modest Charter damages.

The appellant appealed a Superior Court judgment dismissing her claim for professional negligence and breach of contract against real estate agents on the basis that the action was statute barred under section 5(1)(b) of the Limitations Act, 2002.

The underlying dispute arose from the sale of a property in 2008-2009, with the appellant alleging that the real estate agents improperly induced her to sign a counter-offer and presented it against her instructions.

The appellant commenced the action in 2015, claiming she only discovered her claim during an examination for discovery in March 2015.

The Court of Appeal upheld the dismissal, finding that the appellant should have known of her claim well before commencing the action, particularly after obtaining a real estate licence and taking real estate courses that would have put her on notice to make further inquiries.

The appellant appealed a decision by the motion judge upholding a default payment of $60,000 in a settlement agreement, arguing it was unconscionable.

The Court of Appeal found no error in the motion judge's thorough analysis and conclusion that the default payment was reasonable in the circumstances.

The appeal was dismissed with costs awarded to the respondent.

The appellants, a syndicate of lenders, sued the respondent auditors for negligent and reckless misrepresentation after advancing funds to a company based on audited financial statements that failed to disclose a massive accounting fraud.

The motion judge granted partial summary judgment dismissing the lenders' negligence claim, finding that the spectre of indeterminate liability negated the auditors' prima facie duty of care.

The Court of Appeal allowed the appeal, holding that partial summary judgment was inadvisable in the context of the litigation as a whole due to the real risk of duplicative or inconsistent findings at the upcoming trial on the remaining claims.

The appellant appealed a judgment regarding an assignment obligation, an indemnity obligation, and a costs order.

The Court of Appeal found no error in the motion judge's finding of waiver of the assignment obligation or the legal effect given to the indemnity obligation.

The court granted leave to appeal costs and reduced the costs awarded below by $2,000 to remove services unrelated to the litigation, but otherwise dismissed the appeal.

The appellants appealed an order granting the respondent's motion for summary judgment and dismissing their claim for rectification.

The appellants argued the motion judge applied the incorrect test for summary judgment and improperly made credibility determinations.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly directed herself to whether the record raised a genuine issue requiring a trial.

The documentary record confirmed that the requirements for rectification could not be met, which was dispositive of the motion.

The appellant portfolio manager appealed a trial judgment finding it liable for mismanaging the respondent's investment account by retaining excessive short-term investments and purchasing a speculative stock.

The trial judge had dismissed the main part of the respondent's claim but allowed these two specific claims.

On appeal, the appellant argued the trial judge's reasons were inadequate because he incorporated large portions of the parties' facta, and challenged the findings on negligence, ratification, mitigation, and damages.

The Court of Appeal dismissed the appeal, holding that while the trial judge's incorporation of facta was ill-advised, the reasons as a whole were sufficient for appellate review and the factual findings were supported by the evidence.

The appellants appealed a jury verdict finding them liable for damages arising from an incident involving allegations of dangerous driving and 'gay bashing'.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's jury instructions on reasonable and probable grounds, no unreasonableness in the damages award for income loss, and no error in the award of substantial indemnity costs due to late disclosure and the jury's acceptance of the 'gay bashing' element.

A cross-appeal regarding aggravated damages was also dismissed.

The appellant appealed an order regarding her interest in a property located on Roncesvalles Avenue.

The Court of Appeal dismissed the appeal, finding that any interest the appellant had was compromised in minutes of settlement in July 2002, which resulted in a court order transferring the property to the respondents.

As no appeal was taken from that prior order, the appellant had no claim to an accounting of the proceeds of the sale.

The appellants appealed a motion judge's decision which found that the respondent did not acquiesce in an alleged conflict of interest and breach of fiduciary duty by her former solicitor.

The Court of Appeal allowed the appeal, finding that the respondent's active participation in 19 days of assessment hearings over 4.5 years constituted acquiescence.

The Court held that it was not open to her to raise the issue for the first time after such a delay, which caused demonstrable prejudice to the assessment process and the solicitor.

The assessment was ordered to proceed without consideration of the conflict of interest allegations.

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

The Court of Appeal dismissed the appeal, finding that the order under appeal was interlocutory rather than final, and that the result of the motion would have inevitably been the same whether brought in Kingston or Toronto.

Costs were awarded to the respondent on a partial indemnity basis.

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

After receiving submissions from the parties, the court fixed the appellants' costs on a partial indemnity basis at $2,250 for the action and $10,000 for the appeal, inclusive of disbursements and GST.

The defendants appealed a motion judge's order dismissing their third party claim against the officers and directors of the plaintiff corporation.

The Court of Appeal allowed the appeal, finding that the motions judge erred in holding that a claim for contribution could not be maintained and that the representations of the third parties had to be made outside the scope of their office.

The Court held it was not plain and obvious that the third party claim could not succeed, set aside the dismissal, and awarded costs to the appellants.

The parties entered into a joint venture agreement (JVA) to market CFC-free refrigerants.

The relationship deteriorated, leading to multiple lawsuits involving claims of breach of contract, misrepresentation, and conversion.

The trial judge found that the Lam Group breached the JVA but that the Gu Group had waived its right to damages by its subsequent conduct in negotiating a new agreement.

The trial judge also denied the Gu Group an inquiry into damages on the Lam Group's interlocutory injunction undertaking because the Gu Group had flagrantly violated the injunction.

The Lam Group's cross-appeal regarding pre-contractual misrepresentations and oppression was dismissed.

The trial judge's award of $50,000 in punitive damages against the Lam Group for the conversion of a laptop computer was upheld.

The Court of Appeal dismissed all appeals and the cross-appeal.

The Ontario Human Rights Commission appealed a Divisional Court decision upholding a board of inquiry's pre-hearing disclosure order.

The board had ordered the complainant, who alleged discrimination based on a physical handicap, to produce various medical, workers' compensation, and pension files, as well as a list of all other treating medical practitioners.

The Court of Appeal held that the board had the authority to order the complainant to provide an affidavit of documents for the specified files, allowing for claims of privilege and irrelevance to be adjudicated.

However, the Court found that the board exceeded its jurisdiction by ordering the complainant to provide a list of all other treating doctors and their treatments without any relevance screening, as this unjustifiably infringed her privacy rights.

The appeal was allowed in part to set aside that specific paragraph of the board's order.

The appellant appealed the trial judge's dismissal of its motion to amend its damage claim and the award of only nominal damages for expenditures incurred prior to the respondent's breach of contract.

The respondent cross-appealed the finding that it breached the contract and the trial judge's costs order.

The Court of Appeal dismissed both the appeal and cross-appeal, finding that the trial judge correctly concluded the amendment would cause prejudice, that the appellant's expenses would have exceeded its benefits had the contract been performed, and that the respondent's reasons for terminating the contract were manufactured.

The appellant was injured in a motor vehicle accident and settled her claim for statutory accident benefits with her insurer for a lump sum.

She later sued for further benefits, and the insurer relied on the signed release.

The appellant argued the release was invalid because the insurer's written notice did not comply with s. 9.1(2) of Regulation 664 under the Insurance Act.

The Court of Appeal agreed, finding the notice failed to provide an estimate of the commuted value of the benefits and failed to state the maximum benefits available.

The appeal was allowed and the summary judgment dismissing the action was set aside.