Civil Litigation - Defendant - OCA

The respondents sought dismissal of the appellant's appeal under r. 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, or an abuse of process.

The court held that an appeal from a default judgment was outside its jurisdiction because the order was interlocutory and the proper route was a motion to set aside default under r. 19.08.

The panel also noted that a party noted in default is restricted from taking further steps absent leave or consent under r. 19.02(1)(b).

Concluding the appeal was jurisdictionally barred and abusive, the court dismissed the appeal without costs.

The moving parties sought to quash the responding party's appeal of an order validating service of an application record.

The responding party, a foreign state, argued the order was final because it determined substantive rights regarding state sovereignty and the Hague Convention.

The Court of Appeal held that the order validating service was procedural and interlocutory, as it did not finally dispose of the dispute or deprive the responding party of substantive defences.

The motion was granted and the appeal was quashed.

This is a costs endorsement following an appeal and cross-appeal.

The Court of Appeal for Ontario determined that success on both the appeal and cross-appeal was divided, and therefore ordered that each party bear their own costs.

The appellant brought a motion under s. 7(5) of the Courts of Justice Act to set aside an order of a single judge requiring its principal to provide a personal undertaking to pay the costs of the action and appeal as security for costs.

The Court of Appeal found that the motion judge erred in misapprehending that the principal had agreed to provide such an undertaking.

Conducting a de novo review, the Court held that while the corporate appellant had insufficient assets in Ontario, an order for security for costs was not just in the circumstances due to the respondent's delay, the appeal not being devoid of merit, and the inappropriateness of requiring a personal undertaking from a non-party principal.

The appellant appealed a motion judge's order dismissing her action against the respondents under Rule 21.01(1)(b) of the Rules of Civil Procedure without leave to amend.

The appellant alleged that the respondents breached a settlement agreement by: (1) appealing her WSIB benefits claim in violation of a release clause, and (2) breaching confidentiality provisions by disclosing settlement agreement information in an affidavit filed in a class proceeding.

The motion judge struck both claims and dismissed the action against the individual respondent.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the claims could not succeed, and granted leave to amend the claim against the individual respondent.

A judgment released on May 27, 2019 in this appeal was withdrawn due to a procedural error.

One member of the three-judge panel that heard the appeal, Justice Huscroft, was not provided with either the draft or final judgment for review or signature.

The judgment was signed in error by a justice who was not a member of the hearing panel.

The court determined that the judgment was of no force or effect and that the appeal must be re-heard by a differently constituted panel.

A self-represented litigant sought to extend the time to bring a motion for leave to appeal an order of the Divisional Court that had upheld a master's decision dismissing his action against a commercial landlord.

The applicant had missed the 15-day deadline by three days but delayed nine months before bringing the motion to extend time.

Two motion judges refused the extension.

The Court of Appeal panel reversed both orders and granted the extension, finding that the justice of the case favoured extension based on the applicant's maintained intention to appeal, absence of prejudice to the respondent, and arguable errors in the courts below regarding jurisdiction and the application of the striking rule.

The respondent consented to the appeal.

The Court of Appeal found that the order of Carey J. dated July 24, 2018 was made without jurisdiction, as an order under Rule 31.10 cannot be made without a proceeding having been undertaken in Ontario.

The order was set aside.

The respondent undertook not to enforce the order of Bondy J. dated July 17, 2018.

Costs were awarded to the appellant.

The appellant was injured as a passenger in a vehicle owned by his spouse and driven by an uninsured driver without the spouse's consent.

The vehicle was insured by Jevco.

The appellant claimed coverage under uninsured automobile coverage, but Jevco denied the claim on the basis that the vehicle was not an "uninsured automobile" because it was owned by the insured's spouse.

The motion judge agreed with Jevco and dismissed the claim.

The Court of Appeal upheld the dismissal, finding that the statutory and contractual definitions of "uninsured automobile" unambiguously exclude vehicles owned by the insured or their spouse, regardless of whether the vehicle was taken without consent.

The appellant, a minor injured when a barista poured scalding hot water on her hands at a Starbucks location, appealed the motion judge's decision striking the Statement of Claim against the individual defendants (the barista and store manager).

The motion judge had struck the claim on two grounds: that it did not disclose a reasonable cause of action and that suing the individuals constituted an abuse of process.

The Court of Appeal allowed the appeal, holding that employees can be personally liable for their own negligence while acting within the scope of employment, and that naming individual defendants for discovery purposes does not constitute an abuse of process when a proper cause of action has been pleaded against them.

The appellants appealed a motion judge's order requiring them to pay an additional $528,113 pursuant to a settlement agreement.

The appellants argued the motion judge erred in accepting the evidence of the respondents' expert accountant regarding management fees, professional fees, and benefits.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or his decision to prefer the expert's evidence over that of an interested party, especially since the appellants did not object to the report's admissibility or file their own expert report.

The husband brought a motion for an extension of time to serve and file notices of appeal in a matrimonial action and a related debt action.

The delay was initially only one day due to a counting error by his lawyer, but further delay occurred while seeking a stay and settling the trial order.

The Court of Appeal applied the five-factor test for extending time.

The court granted the extension for the debt action and the financial issues in the matrimonial action, finding no prejudice.

However, the court denied the extension for the custody and access issues, noting the children were thriving under the newly implemented schedule and the justice of the case did not warrant disrupting their stability.

The appellants appealed a judgment enforcing a settlement and release, as well as the associated costs order.

The Court of Appeal dismissed the appeal on the merits, finding no surprise or prejudice to the appellants regarding the settlement issue and agreeing with the motion judge's reasons.

However, the Court granted leave and allowed the appeal regarding costs, finding no basis for an award exceeding partial indemnity.

The costs order below was set aside and replaced, and costs of the appeal were awarded to the respondents.

The appellants appealed a trial judgment awarding costs in the form of damages and substantial indemnity costs against Westmont.

The Court of Appeal set aside the award of costs as damages due to lack of specificity in the pleadings.

The Court upheld the substantial indemnity costs for the main claim under Rule 49.10, but found that Rule 49 should not apply to the counterclaim against Westmont, as it was not a party to the counterclaim.

The costs award was apportioned and reduced to $190,000.

The moving party brought a motion to quash an appeal.

The responding party failed to appear despite being advised of the hearing date.

The Court of Appeal proceeded with the motion and held that the appeal was barred by section 7(6) of the Arbitration Act.

The motion was granted, the appeal was quashed, and costs of $2,000 were awarded to the moving party.

Following an appeal, the court received written submissions to fix costs on a partial indemnity scale.

The appellants requested no costs be awarded, which the court rejected.

The court reviewed the costs claimed by the respondents—the Interim Receiver, Cominco Ltd., and Yukon Energy Corporation—and found some of the claimed fees to be excessive.

The court fixed the costs for each respondent at reduced amounts, inclusive of disbursements and applicable GST.

The appellants appealed a judgment dismissing their claim for partition and sale and granting other relief.

The Court of Appeal upheld the dismissal of the partition and sale claim, finding that the joint venture agreement provided a proper basis for denying this relief.

However, the Court found material facts in dispute regarding mortgage disclosure and directed those issues to proceed to trial.

The appeal was allowed in part.

Following a fatal motor vehicle accident caused by an uninsured driver, a dispute arose between two insurers over the priority of their respective policies in funding the settlement.

The motions judge held that the driver's State Farm Fire umbrella policy, which included an uninsured motorist option, had to respond before the passenger's Royal Insurance O.E.F. 44 family protection endorsement.

The Court of Appeal allowed the appeal, finding that the umbrella policy was not a motor vehicle liability policy under the Insurance Act and was explicitly excess insurance.

Therefore, the passenger's O.E.F. 44 endorsement had to be exhausted before recourse could be made to the umbrella policy.

The appellants appealed a jury verdict apportioning liability for a motor vehicle accident involving a child on a rock slide, and the trial judge's award of a $25,500 costs premium to the plaintiffs.

The Court of Appeal upheld the jury's finding that the driver was only 10% responsible, noting the high threshold for interfering with a jury's apportionment.

The court also upheld the costs premium but allowed an amendment to reduce the judgment by $10,921.44 based on recent case law.

The appellants, who were non-parties to the bankruptcy proceedings, appealed a trial judge's order awarding costs against them.

The trial judge had dismissed the bankruptcy petitions against the respondents, finding they were brought for an improper collateral purpose and constituted an abuse of process orchestrated by the appellants.

The Court of Appeal upheld the costs order, noting that section 197(1) of the Bankruptcy and Insolvency Act gives the court broad discretion regarding costs, and that special policy considerations justify harsher costs consequences against persons who misuse the bankruptcy court for improper collateral purposes.