Civil Litigation - Defendant - OCA

Following an appeal and a fresh evidence motion, the court issued a costs endorsement.

Costs were awarded to the successful respondent on a partial indemnity scale, fixed at $5,000.

The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).

The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.

Costs were awarded against the appellant.

The appellant, Sergio Grillone, brought a motion to vary a previous decision.

The Court of Appeal dismissed the motion, finding that the appellant failed to demonstrate any error of law or misapplication of discretion by the motion judge.

Costs of $10,000 were awarded to the respondent.

The moving party, Fariborz Tavana, on behalf of Master Tech Inc., sought to set aside an order dismissing his motion for an extension of time to file a notice of appeal.

The underlying appeal related to a costs order and the dismissal of an action.

The Court of Appeal identified several impediments, including the dissolution of Master Tech Inc., Mr. Tavana's lack of authority to act for the corporation, and the absence of any reviewable error in the prior decision.

The court found no arguable merit to the proposed appeal and a consistent pattern of delay.

The motion was dismissed with costs.

The appellant, Wasif Rashidi, appealed a summary judgment order awarding damages to M.T. Johnstone Construction Ltd. for breach of an Agreement of Purchase and Sale.

The appellant failed to close on a property purchase and argued he was orally promised an assignment, which was not honoured, and that the respondent failed to mitigate damages.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's findings that the realtor was the appellant's agent, the assignment conditions were not met, and the respondent had reasonably mitigated damages.

The court also rejected arguments of economic frustration and judicial bias.

The appellant (vendor) appealed a trial judgment finding it breached an Agreement of Purchase and Sale (APS) for development lands and awarding the respondent (purchaser) over $11 million in lost expected profits.

The Court of Appeal upheld the trial judge's finding of liability, confirming the vendor's breach for wrongly asserting the purchaser failed to pay a further deposit and that the purchaser was ready, willing, and able to close without tendering.

However, the Court allowed the appeal on damages, ruling that the trial judge erred by departing from the normal measure of damages for real estate breaches (difference between contract price and market value on closing date).

The Court clarified that the remoteness test determines the *type* of loss, not the *measure*, and that market value inherently accounts for development potential.

A new hearing was ordered to assess damages using the normal measure.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

The appellant, Donavan Locke, appealed orders from the Superior Court of Justice dismissing his second and third actions (alleging deceit and conspiracy against his former common-law partner and her lawyers regarding a property transfer) and dismissing his own motions (including a constitutional question and criminal contempt).

The Court of Appeal found no errors in the motion judge's decision, affirming that summary judgment was appropriate due to the appellant's lack of evidence and damages.

The court also upheld the dismissal of the appellant's motions, noting the constitutional question was "ill conceived" and there was no basis for criminal contempt.

The appeal was dismissed, and the appellant was ordered to pay costs to each respondent.

The appellants appealed an order directing funds paid into court to be released to the respondent, which were secured by a mortgage.

The Court of Appeal quashed the appeal for lack of jurisdiction, finding the order to be interlocutory rather than final.

The court reasoned that the order did not finally determine the substantive issues between the parties, such as claims of improvident realization or breach of duty, which remained subject to a separate, unscheduled application.

Tbaytel, the moving party, sought to strike an affidavit filed by Optiva Inc., the responding party, in connection with Optiva's pending motion for leave to appeal an arbitration award.

The affidavit, from J. Brian Casey, aimed to provide factual information regarding the public importance of issues raised in the leave to appeal motion, specifically concerning the availability of summary judgment in arbitration without consent and the arbitrator's use of case law.

The court partially granted the motion, striking parts of the affidavit that expressed opinions on the legal importance of issues or buttressed attacks on the correctness of prior decisions, while allowing factual descriptions of common arbitration practices to remain.

This is a costs endorsement following the dismissal of an appeal as frivolous and vexatious.

The appellants failed to respond to the respondents' requests for costs.

The court reviewed the submissions and found the partial indemnity costs sought by The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson, Rena Knox, and The Hospital for Sick Children to be reasonable.

The appellants were ordered to pay costs to these respondents.

This is an appeal from a trial decision in a high-conflict matrimonial litigation case where the respondent's pleadings were struck due to willful non-compliance with disclosure orders.

The appellant challenged the trial judge's approach to evidence, refusal to recognize a constructive trust, spousal support determination, denial of a vesting order, and the costs award.

The Court of Appeal dismissed the appeal on all grounds, affirming the trial judge's discretion in probing evidence even in an uncontested trial, applying the net family property scheme, and exercising discretion regarding support, vesting orders, and costs.

The court also reaffirmed the principle that a party in willful default of court orders may be denied audience on appeal.

The Office of the Independent Police Review Director (OIPRD) appealed a Divisional Court decision that quashed its second finding (unsubstantiated) regarding a police misconduct complaint by the Stanleys and ordered a third investigation.

The Court of Appeal upheld the quashing of the OIPRD's second decision, but on the ground that the OIPRD was functus officio and lacked statutory or common law authority to reconsider its initial substantiated finding.

The Court set aside the Divisional Court's order for a third investigation, restoring the OIPRD's original decision to refer the matter for a disciplinary hearing, while noting that the OIPRD could now apply its newly amended rules for reconsideration.

The appellant purchased rims and tires for his vehicle, financed by the respondent.

The respondent registered a non-possessory lien under the Repair and Storage Liens Act (RSLA) and attempted to seize the vehicle when the appellant defaulted.

The application judge declared the respondent was entitled to the lien.

On appeal, the Court of Appeal found that the vendor never possessed or repaired the vehicle, meaning no possessory lien arose that could be converted to a non-possessory lien or assigned to the respondent.

The court also held that RSLA liens arise by statute, not contract, and the deemed possession provision in s. 3(4) did not apply.

The appeal was allowed and the lien declared invalid.

The appellants appealed an order dismissing their main action and striking their defence to a counterclaim for delay and failure to comply with undertakings.

The Court of Appeal found no error in the motion judge's decision based on the record before him.

However, the appellants brought a motion to file fresh evidence consisting of the previously unproduced financial documents.

Although the fresh evidence did not meet the due diligence requirement, the Court admitted it because it was highly relevant to the ongoing defamation counterclaim.

The appeal was allowed, the pleadings were restored, and the action was returned to the trial list, with costs awarded to the respondent due to the appellants' delay.

The appellant appealed a trial judgment granting the respondents ownership of a portion of a road allowance by adverse possession and finding an easement of necessity over a gravel road on the appellant's property.

The Court of Appeal upheld the adverse possession finding, concluding the trial judge reasonably interpreted a 1998 agreement as not interrupting the ten-year possession period.

However, the Court set aside the finding of an easement of necessity, holding that necessity must be assessed at the time of the original grant, at which point the road allowance provided legal access.

The gravel road was instead declared an access road under the Road Access Act.

The appellant landlord appealed a trial judgment awarding the respondent tenants $1,212,000 in damages for loss of business due to the wrongful demolition of the leased premises.

The appellant argued the trial judge erred in finding that demolition began while the lease was still valid, and raised issues of waiver and issue estoppel.

The Court of Appeal dismissed the appeal, finding the trial judge's factual conclusions were supported by the evidence and did not amount to a palpable and overriding error.

The court also found no merit to the waiver and issue estoppel arguments, noting the parties had agreed on the quantum of damages prior to trial.

The respondent lawyer acted for a purchaser in a fraudulent real estate transaction and delivered a trust cheque payable to the true owner.

The fraudster forged the endorsement and deposited the cheque into an account at the appellant bank.

The respondent sued the appellant bank for conversion and was granted summary judgment.

On appeal, the Court of Appeal affirmed the decision, holding that under the Supreme Court's ruling in Boma, a collecting bank is strictly liable in conversion for paying out on a forged endorsement.

The court rejected the bank's defences under the Bills of Exchange Act, finding the payee was not fictitious and the bank was not a holder in due course.

The appellant appealed an order staying the Ontario proceeding on the basis of forum non conveniens.

The respondent undertook not to raise the expiry of a limitation period if the matter proceeded in Manitoba within 60 days.

The Court of Appeal agreed with the motion judge's determination that Manitoba was the proper forum and dismissed the appeal, awarding costs to the respondent.

The moving party brought a motion to quash an appeal from a decision denying leave to appeal an interlocutory order.

The Court of Appeal allowed the motion to quash, holding that there is no right of appeal from a decision denying leave to appeal an interlocutory decision.

Costs were awarded to the moving party in the amount of $4,000.