Civil Litigation - Plaintiff - OCA

The appellants, previously found in contempt of an injunction and fined $1 million, brought a motion to set aside the Registrar's order dismissing their appeal for delay and sought an extension of time to perfect the appeal.

They also sought to introduce a new ground of appeal alleging ineffective assistance of counsel, based on a misapplication of criminal practice directions to a civil proceeding.

The court granted the motion to set aside the dismissal and extend time, but imposed strict conditions, finding the ineffective assistance of counsel argument weak in a civil context.

The moving parties, NDrive, Navigation Systems S.A. and its directors, sought security for costs under Rule 61.06(1) of the Rules of Civil Procedure against the appellants (Zhou parties) in an ongoing appeal.

The motion judge had previously found the appellants liable for civil fraud, awarded substantial damages and full indemnity costs, and noted their shocking and reprehensible litigation conduct.

The Court of Appeal granted the motion for security for costs, totaling $300,000, finding that the prior findings of fraud and litigation misconduct, coupled with the appellants' insufficient assets in Ontario, constituted "other good reason" under Rule 61.06(1)(c).

This is a costs endorsement following an appeal where the appellants (defendants) successfully challenged the sanction (judgment in the action) imposed by the motion judge for contempt, due to procedural flaws.

The Court of Appeal upheld the initial costs award for the contempt finding, but set aside the costs for the sanctions hearing and the action, and ordered no costs for the appeal, acknowledging the appellants' underlying contemptuous conduct as the root cause of the proceedings.

The appellant, Kenaidan Contracting Ltd., brought an appeal from an order of the Superior Court of Justice.

The appeal was dismissed by consent of the parties, with no order as to costs.

The plaintiffs appealed a motion judge's order refusing to validate late service of their Statement of Claim.

The plaintiffs had made diligent but unsuccessful efforts to serve the evasive defendant within the six-month period.

The motion judge had found on separate motions that neither party proved their case regarding prejudice.

The Court of Appeal allowed the appeal, holding that the motion judge's findings were irreconcilable and that the plaintiffs had discharged their onus to show no prejudice, especially since the defendant provided no details of any alleged prejudice.

Service was validated.

The appellant guaranteed a mortgage granted by his company.

After default, the respondents obtained judgment against the appellant on the guarantee.

The respondents subsequently postponed their mortgage to other mortgages held by related companies, and a foreclosure judgment was obtained.

The appellant applied to set aside the judgment against him, arguing the postponement materially altered his risk and terminated the guarantee.

The application judge dismissed the application.

On appeal, the Court of Appeal upheld the interpretation that the guarantee permitted the postponement without consent.

However, the Court admitted fresh evidence of the foreclosure judgment and remitted the issue of its effect on the enforceability of the judgment against the appellant to the application judge.

The appellants, representing regional airline pilots, sued Air Canada pilots for unlawful act conspiracy, alleging they unlawfully prevented the implementation of a merged seniority list.

The trial judge dismissed the claims, finding that some defendants committed no unlawful acts due to their right to dissent, and that the unlawful acts of others did not cause the loss of a chance to implement the list because Air Canada would never have agreed to it.

The Court of Appeal upheld the trial judge's findings, concluding that the rank-and-file members did not breach their union contracts and that the chance of implementing the merged list was de minimis.

The appellants, Piro and Montaldi, appealed a summary judgment finding them liable for knowingly assisting an Enbridge employee, Marinaccio, in breaching his fiduciary duty through a fraudulent invoicing scheme.

Over six years, Enbridge paid over $6.5 million for fake invoices submitted by entities controlled by the appellants, who then shared the proceeds with Marinaccio.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that Marinaccio owed a fiduciary duty, the appellants knowingly assisted in his dishonest conduct, and they were liable for bribery and unjust enrichment.

The court also upheld the calculation of damages and the award of compound interest.

The respondent brought a motion for security for costs pending the disposition of the appellant's appeal from an order dismissing her action for delay.

The Court of Appeal found good reason to believe the appeal was frivolous and vexatious given the extensive history of delay and failure to comply with court orders.

Despite the appellant's claim of impecuniosity, the Court ordered her to post $15,000 as security for costs to balance the respondent's right to protection against the appellant's access to justice.

The appellant appealed an order disposing of a defamation matter on the basis of qualified and common law privilege.

The Court of Appeal dismissed the appeal, finding no error by the motion judge as there was no triable issue regarding malice, making it unnecessary to determine the truth of the statements complained of.

The appellant appealed an order referring a solicitor's account for assessment.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's exercise of discretion, as the motion judge had identified sufficient reasons to establish special circumstances.

The appellant appealed the dismissal of his action for the return of money he claimed was a loan to his son and former daughter-in-law.

The trial judge found the money was a gift, believing the testimony of the former daughter-in-law over the appellant and his son.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility findings, which were supported by the suspicious timing of the demand for repayment just before the couple's separation.

The appellant university appealed a trial judgment finding it liable for negligent misrepresentation regarding the transferability of its engineering program credits.

The trial judge found that the university's promotional materials misleadingly suggested that transferring to another university after two years would be routine.

The Court of Appeal dismissed the appeal on liability, finding no basis to interfere with the trial judge's factual findings that the representations were misleading, negligently made, and reasonably relied upon by the respondent.

The court also upheld the finding that the respondent acted reasonably to mitigate his damages.

Leave to appeal costs was granted on consent to delete specific paragraphs from the trial judgment.

The appellant was injured in a motor vehicle accident during the course of his employment and applied for workers' compensation benefits.

He subsequently elected to proceed with a civil action against the responsible third party.

His employer's long-term disability insurer denied his claim for benefits, arguing he was no longer entitled after his election.

The Court of Appeal held that the appellant satisfied the policy's condition precedent by applying for workers' compensation benefits and was therefore entitled to long-term disability benefits.

However, the insurer was entitled to reduce the monthly benefit by the amount of workers' compensation benefits the appellant would have received had he not elected to sue.

The appellant property owners appealed the dismissal of their action against a former property manager for alleged misappropriation of flea market revenues, negligence, and breach of fiduciary duty.

The Court of Appeal upheld the trial judge's findings that the evidence of misappropriation amounted only to suspicion and that the manager owed no duty of care regarding the flea market's operation.

The Court also affirmed the trial judge's discretionary refusal to order disgorgement of profits from the manager's undisclosed outside business activities, noting the employer suffered no damages and the manager had performed his duties satisfactorily.

The appellant appealed a summary judgment decision regarding a motor vehicle accident.

The appellant argued there were genuine issues for trial concerning where the injured party was seated and whether wearing a seat belt would have mitigated her damages.

The Court of Appeal dismissed the appeal, finding no evidence to support the appellant's position on the seating location and agreeing with the motion judge that expert evidence showed a seat belt would have made no difference.

The appellant appealed an order striking his statement of claim against the respondent university.

The Court of Appeal found that although the procedure followed below was unclear, the motion judge was entitled to strike the pleading under Rule 25.11 as being untenable in law, given the dispute was essentially an academic matter.

The court also upheld the refusal to grant leave to file a fresh statement of claim in contract, concluding the claim could not possibly succeed.

The appeal was dismissed with costs.

The appellants appealed a judgment granted in favour of the respondent bank.

The Court of Appeal found no basis to interfere with the trial judge's conclusion that the bank was entitled to judgment.

However, based on fresh evidence admitted on consent, the court varied the judgment amount to $101,941.26.

The appeal was otherwise dismissed with costs.

The appellant appealed a summary judgment enforcing a written agreement.

The appellant argued that a contemporaneous oral agreement altered its payment obligations.

The Court of Appeal dismissed the appeal, holding that the written agreement was clear and unambiguous, and evidence of an oral agreement cannot be admitted to contradict its terms.

The Court also noted that even if the dispute was subject to an arbitration clause, summary judgment was appropriate under s. 7(2), para. 5 of the Arbitration Act, 1991.

The appellant employer appealed a trial judgment that found it had wrongfully dismissed the respondent employee and dismissed its claims for breach of fiduciary duty.

On appeal, the appellant brought a motion to introduce fresh evidence showing the respondent had been criminally charged with defrauding the appellant of over $200,000 through a secret scheme involving a third-party corporation.

The Court of Appeal admitted the fresh evidence, finding it met the Palmer criteria, including due diligence, as the evidence was largely uncovered through a subsequent police investigation.

Concluding that the fresh evidence could have decisively affected the trial judge's findings on the respondent's credibility and loyalty, the Court allowed the appeal and ordered a new trial.