Civil Litigation - Plaintiff - OCA

The moving parties (plaintiffs) brought a motion to quash the responding parties' appeal of an order adding them as defendants in a medical malpractice action.

The moving parties argued the order was interlocutory and should be appealed to the Divisional Court.

The responding parties argued the order was final because it definitively dismissed their limitation period defence.

The Court of Appeal held that the motion judge's findings regarding the limitation period were preliminary and did not preclude the responding parties from pleading the defence at trial.

Consequently, the order was interlocutory, the appeal was quashed, and the matter was transferred to the Divisional Court.

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

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

The appellant sought $18,760 in partial indemnity costs for the proceeding below, having filed an offer to settle for dismissal of the motion without costs.

The respondents proposed $6,000.

The court considered the time spent by both parties and fixed costs at $15,000, all-inclusive, to be paid by the respondents to the appellant for the lower court proceedings.

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

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

The appellant, Wayne Laski, and the Estate of Harold Morton Laski appealed a motion judge's decision to strike their action against BMO Nesbitt Burns Inc. and Norman Yu.

The action alleged negligent misrepresentation and breach of disclosure duty related to a transfer of securities from Harold Laski to a joint account with Wendi Laski, which passed by right of survivorship outside the estate.

The motion judge struck the estate's claim for non-compliance with procedural rules and the appellant's personal claim based on issue estoppel, collateral attack, abuse of process, and lack of duty of care/damages.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to proceed with the motion in the appellant's absence due to repeated non-compliance with adjournment conditions.

The court also affirmed the striking of the personal claim, finding no error in the application of issue estoppel and noting the appellant's failure to demonstrate damages.

The appellant appealed the dismissal of his 2012 claim, which the motion judge found was res judicata and an abuse of process due to a 2006 settlement and release.

The Court of Appeal agreed, holding that any new claims post-dating the 2006 settlement must be brought in a new statement of claim.

The Court also granted leave to appeal the motion judge's substantial indemnity costs order but dismissed the costs appeal, awarding the respondents $20,000 in costs for the appeal.

In a national class action by terminated GM dealers against GMCL and Cassels Brock, Cassels Brock brought third party claims against out-of-province local lawyers who provided independent legal advice to the dealers.

The Quebec-based third party law firms moved to stay or dismiss the third party claims for lack of jurisdiction.

The motion judge dismissed the motion, finding that the Ontario court had jurisdiction because the wind-down agreements were Ontario contracts connected to the dispute, and that Ontario was the most appropriate forum.

The Court of Appeal upheld the decision, confirming the application of the Van Breda presumptive connecting factors and forum non conveniens principles to third party claims.

The appellant filed a Notice of Abandonment for the appeal.

The Court of Appeal ordered costs of the abandoned appeal to the respondent, fixed at $7,500 inclusive of disbursements and taxes.

The appellant appealed a summary judgment order regarding the ownership of assets.

The Court of Appeal found no error in the motion judge's conclusion, based on pleadings, correspondence, and subsequent conduct, that the parties intended to hold the assets 50% for each other regardless of legal ownership.

The appeal was dismissed with costs fixed at $11,000.

The respondent moved to quash the appellant's appeal from an order dismissing a motion to set aside a default judgment, arguing the appeal lay to the Divisional Court because the monetary judgment was under $50,000.

The Court of Appeal dismissed the motion to quash, holding that because the default judgment also included an order to deliver up personal property, the appeal properly lay to the Court of Appeal, as the Divisional Court's jurisdiction under s. 19 of the Courts of Justice Act is strictly monetary and does not extend to the recovery of personal property.

The appellant hospital appealed a jury verdict finding it liable for medical malpractice resulting in an infant's permanent brain injury (cerebral palsy) due to oxygen deprivation during birth.

The jury found the attending nurse breached the standard of care by failing to use electronic foetal monitoring and failing to properly perform intermittent auscultation.

The Court of Appeal dismissed the appeal, holding that there was sufficient expert evidence to support the jury's findings on both the breach of the standard of care and causation, and that the verdict was not plainly unreasonable.

The appellants appealed a summary judgment order dismissing their claim against the respondent for knowing assistance in breach of fiduciary duty.

The dispute arose from the sale of the appellants' shares in a family-owned shopping mall to the remaining family members, who then sold a 50% interest to the respondent at a higher valuation.

The Court of Appeal upheld the motion judge's finding that there was no evidence the respondent had actual knowledge of the alleged fraudulent and dishonest conduct or breach of fiduciary duties towards the appellants.

The appellant appealed an order finding that a third party was not a necessary party to the action under Rule 5.03.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the claim against the appellant's former articling student did not implicate the third party's rights such that her presence was necessary to adjudicate the issue.

The appellant financed the purchase of two trucks and perfected its purchase money security interests under the PPSA.

The trucks were leased to third parties, insured by the respondent, and subsequently stolen.

The respondent paid the actual cash value of the trucks to the insureds and claimed salvage rights under statutory condition 6(7) of the Insurance Act.

The Court of Appeal held that the appellant's perfected security interests had priority over the respondent's salvage rights.

Section 4(1)(c) of the PPSA and statutory condition 6(7) do not operate to extinguish a prior perfected security interest, and the transfer of title to the insurer was not a sale in the ordinary course of business.

The appellant sought an adjournment of his appeal to raise a new ground of ineffective assistance of counsel, conceding that the original grounds lacked merit.

The Court of Appeal refused the adjournment and dismissed the appeal, finding no merit to the proposed ground and noting the case did not fall within the exceptional circumstances required for such a claim in civil proceedings.

The plaintiff commenced a proposed class action in Ontario against Money Mart and its American parent company, Dollar Financial, alleging they charged criminal interest rates on pay-day loans.

Dollar Financial appealed a motion judge's decision dismissing its motion to set aside service ex juris and stay the action for lack of jurisdiction.

The Court of Appeal dismissed the appeal, finding a good arguable case against Dollar Financial based on alter ego, conspiracy, and unjust enrichment theories.

Applying the Muscutt factors, the Court held there was a real and substantial connection between Dollar Financial and Ontario, giving the Ontario court jurisdiction.

The appellants appealed a summary judgment order requiring payment on a promissory note.

They argued the motion judge erred by not ordering a stay of execution or directing the monies be paid into court pending the resolution of a related oppression remedy action.

The Court of Appeal dismissed the appeal, finding no basis to disturb the motion judge's determination that the promissory note was sufficiently disconnected from the oppression action, and noting no prejudice was alleged.

The appellants appealed a trial judgment awarding damages for a brain injury sustained in a motor vehicle accident.

They argued the trial judge erred in relying on the opinion of a psychiatrist over other specialists who found no brain injury.

The Court of Appeal dismissed the appeal, holding that the expert was qualified to give the opinion and the trial judge made no palpable and overriding error in preferring it.

The court also upheld the trial judge's findings on lost income and the application of a tax gross-up on future care costs.

The appellant management consulting firm appealed a trial judge's assessment of damages against three former employees who breached their fiduciary duties by secretly soliciting the appellant's clients before resigning.

The trial judge had awarded $30,324 based on a twelve-month grace period, past profit margins, and a 25% contingency deduction.

The Court of Appeal allowed the appeal, finding the trial judge erred in his approach.

The Court held that the former employees misappropriated specific contracts, and the appellant was entitled to its expected net profit from the expected gross revenues without deductions for general overhead or arbitrary contingencies.

Damages were varied to $260,000.

The appellant sought to appeal both the dismissal of a civil action and a substantial costs award to the Court of Appeal.

The trial judge had assessed damages at an amount below the Divisional Court monetary threshold while dismissing the action and fixing solicitor and client costs well above $25,000.

The court held that the main appeal lay to the Divisional Court under the Courts of Justice Act, and that the contingent costs appeal had to follow the main appeal rather than create Court of Appeal jurisdiction.

Both appeals were therefore transferred to the Divisional Court, with motion costs awarded to the respondents.