Civil Litigation - Defendant - OCA

The appellant, Behrouz Salehi, brought a motion under Rule 59.06(2)(a) of the Rules of Civil Procedure to set aside a 2016 Court of Appeal decision that had dismissed his appeal.

The motion was based on newly discovered facts related to his negligence claim against the Association of Professional Engineers of Ontario concerning his licensing application.

The Court of Appeal dismissed the motion, ruling that it lacked jurisdiction to entertain such a motion where the underlying order was affirmed on appeal; such motions must be brought before the Superior Court.

The appellant appealed a summary judgment dismissing her action against the City of Toronto and its representative regarding property tax arrears.

The motion judge had found her claims were statute-barred and that the City was entitled to collect the arrears.

On appeal, the appellant argued the motion judge erred in his conclusions, demonstrated a reasonable apprehension of bias, and should not have granted summary judgment while her claim against her former solicitor remained outstanding.

The Court of Appeal dismissed the appeal, finding no errors, no reasonable apprehension of bias, and no risk of conflicting judgments.

The respondent credit union brought a motion to quash an appeal filed by debtors from a receivership order.

The order appointed a receiver over two residential properties pursuant to the Bankruptcy and Insolvency Act and the Courts of Justice Act.

The appellants sought to appeal without leave.

The court held that no appeal as of right existed and declined to grant leave to appeal, finding that the appeal did not raise an issue of general importance, was not prima facie meritorious, and would unduly hinder the receivership proceedings.

The motion was granted and the appeal quashed with costs fixed at $20,000.

The appellants, parents of one spouse, appealed a motion judge's order granting partial summary judgment dismissing their claim for an interest in a matrimonial property.

The parents had advanced funds to their son and daughter-in-law, claiming some of those funds were used to purchase the property and that they were entitled to a beneficial interest.

The motion judge found no connection between the advances and the property purchase and concluded there was no evidence the advances constituted a loan.

The Court of Appeal found two reversible errors: a misapprehension of evidence regarding the link between the advances and the property purchase, and internal inconsistency in the motion judge's reasoning regarding the legal characterization of the advances.

The appeal was allowed and the partial summary judgment was set aside, leaving the matter for trial.

The appellant discovered that the respondent, a fellow bank employee who was in a relationship with the appellant's former husband, had repeatedly accessed her private banking records without authorization.

The motion judge dismissed the appellant's claim, finding that Ontario law did not recognize a tort of invasion of privacy.

The Court of Appeal allowed the appeal, formally recognizing the tort of intrusion upon seclusion in Ontario.

The court awarded the appellant $10,000 in damages, finding the respondent's deliberate and repeated actions were highly offensive and caused distress.

The appellant appealed an order declaring him a vexatious litigant under s. 140 of the Courts of Justice Act.

The appellant argued his proceedings were brought in good faith based on a belief that the respondents misappropriated funds from their late mother, and that the motion judge improperly considered non-judicial proceedings.

The Court of Appeal dismissed the appeal, finding the record supported the conclusion that the appellant was unreasonably obsessed with the cause and that extra-judicial proceedings were relevant to assessing the bona fides of his court proceedings.

Following the dismissal of a motion for leave to appeal with costs, the moving party complained that it was not given the opportunity to make submissions as to costs.

The court invited submissions.

The responding party provided submissions and a bill of costs supporting the amount awarded, while the moving party provided no further submissions.

The Court of Appeal was satisfied that the original costs order was fair and ordered that it stand.

Following a successful appeal, the appellant police service sought costs of over $90,000.

The Court of Appeal awarded the appellant $20,000 for the costs of the underlying application.

However, the court found the requested appeal costs unreasonable, noting the appeal involved novel issues that the appellant had an institutional interest in resolving.

The court fixed the appeal costs at $25,000, payable by the respondent.

No costs were ordered for or against the interveners.

The respondents brought a motion requesting the Court of Appeal vary its order for a new trial to an order remitting the matter to the trial judge.

The Court declined to grant the relief, finding it would not be appropriate to ask the trial judge to revisit her conclusions on the critical causation issue based on the Court's reasons.

The motion was dismissed without costs.

The plaintiff sued the defendants for wrongful dismissal and negligent misrepresentation regarding the value of shares he would acquire upon employment.

The defendants sought to stay the action, arguing the dispute should be referred to arbitration pursuant to a shareholders' agreement and the International Commercial Arbitration Act.

The application judge refused the stay.

The Court of Appeal dismissed the appeal, finding that the dispute was not 'commercial' in nature and did not arise out of a 'transaction' as defined in the shareholders' agreement, thus falling outside the scope of the arbitration clause.

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

The Court of Appeal dismissed the appeal, holding that the statement of claim did not allege an intent to injure, meaning the intentional act exclusion clause did not apply.

Furthermore, the respondent met the definition of an employee under the policy as he was engaged in cleaning the premises on behalf of the insured at the time of the incident.

Following a successful appeal of sentences imposed for contempt, the appellants sought costs.

The Court of Appeal awarded the appellants their costs of the appeal fixed at $25,000 inclusive of disbursements and GST.

The respondent corporation was ordered to pay $20,000, and the respondent Minister was ordered to pay $5,000, as the Minister's position during the original contempt and sentencing hearings was instrumental in leading to the appeal.

The appellant appealed a decision dismissing its motion to set aside a default judgment.

The motion judge found that the statement of claim was properly served, the appellant made a tactical decision not to defend, and the appellant failed to raise an arguable defence on the merits.

The Court of Appeal upheld the decision, noting the appellant failed to explain its failure to defend under Rule 16.07(a) and did not respond to the respondent's allegations regarding the mortgages.

The appeal was dismissed with costs.

The appellants sought costs of the appeal and trial on a partial indemnity basis following their success.

The respondent argued for no costs, asserting the class proceeding raised a novel point of law and involved a matter of public interest.

The Court of Appeal rejected this argument, finding the litigation was a commercial dispute between sophisticated actors involving established principles.

The court awarded costs of the appeal fixed at $100,000 plus GST to both the individual and corporate appellants, along with disbursements, and ordered trial costs to be assessed on a partial indemnity basis.

The landlord applied for rectification of a commercial lease to include a clause from the offer to lease requiring the tenant to restore the premises to their original condition.

The application judge granted the application.

The tenant appealed.

The Court of Appeal allowed the appeal, finding that the application judge erred by making findings on disputed evidence and by finding that the offer to lease was a prior contract.

The Court held that the offer to lease was merely an agreement to agree, as it contained a clause rendering it void if a formal lease was not agreed upon.

Therefore, the landlord could not establish the elements of rectification.

The appellants appealed a trial judgment, arguing the trial was unfair because their counsel was discharged mid-trial, a mistrial was not declared, and the trial judge relied on the appellant's conduct in court outside the witness box to assess credibility.

The Court of Appeal dismissed the appeal, finding ample evidence to justify the removal of counsel, no error in proceeding after a two-week adjournment for the appellant to prepare to represent himself, and sufficient additional basis for the trial judge's credibility findings.

The appellants appealed an order granting judgment on the respondent's claim for payment.

The Court of Appeal allowed the appeal, finding that the respondent's claim and the appellants' claim for set off were so interrelated that judgment should not have been granted on the former if the latter was to proceed.

The court directed a trial for both claims and ordered the funds held in trust to remain as security pending further court order.

The parties are neighbours who share a mutual easement for repair over a four-foot strip between their houses.

The appellants built a fence entirely on their own property, which restricted access to the easement from the front to about 26 inches.

The respondents successfully applied for an injunction to remove the fence, arguing it obstructed their use of the easement for equipment like a wheelbarrow.

On appeal, the Court of Appeal allowed the appeal, holding that the easement did not include an ancillary right to cross the appellants' unencumbered property.

Because the fence was built entirely on the appellants' own property and not on the easement itself, it could not constitute an obstruction in law.

The appellant bank appealed an order striking portions of its defence in a cheque conversion action arising from employee fraud and forged endorsements.

The court held it lacked jurisdiction over the procedural complaint about allowing a late Rule 21 motion because that issue was interlocutory and required leave to the Divisional Court.

On the merits, the court held that the Supreme Court's strict liability conversion analysis in Boma bars a defence of contributory negligence, but does not eliminate the distinct statutory defence of preclusion under s. 48(1) of the Bills of Exchange Act.

Because the impugned paragraphs were unclear and could amount to contributory negligence, they were properly struck to that extent, but the appellant received leave to amend to plead any legally available defence clearly.

Costs were ordered in the cause.

In a motor vehicle negligence appeal from a jury verdict, the appellants challenged the exclusion of an investigating police officer’s accident reconstruction opinion and the trial judge’s references to an inadmissible police report in the jury charge.

The court held that the trial judge erred in treating expert necessity as absent merely because other experts testified, and also erred by discussing the contents of the excluded report before the jury.

Nevertheless, applying s. 134(6) of the Courts of Justice Act, the court found no substantial wrong or miscarriage of justice because the officer’s observations and the defence expert’s evidence effectively conveyed the same theory, and the impugned charge did not materially affect the result.

The appeal was dismissed with costs.