Civil Litigation - Plaintiff - OCA

The moving party sought an extension of time to file a notice of motion for leave to appeal a Divisional Court decision that dismissed their action for delay.

Despite the brief delay in filing the motion for leave being due to counsel's inadvertence, the Court of Appeal dismissed the motion.

The court found the proposed appeal lacked merit and emphasized the moving party's long history of procedural misconduct, which caused significant prejudice to the responding parties, particularly due to the death of a critical witness whose evidence was never preserved.

The court concluded that the "justice of the case" demanded the dismissal of the motion to protect the integrity of the civil justice process and prevent an unfair adjudication on the merits.

This is an appeal from a summary judgment awarding damages for the appellants' failure to close a residential real estate transaction.

The appellants challenged the damages amount, arguing failure to mitigate and issues with expert evidence.

The respondent cross-appealed the prejudgment and postjudgment interest rates.

The Court of Appeal dismissed both the appeal, finding the appellants failed to discharge their onus on mitigation, and the cross-appeal, affirming the motion judge's discretion to depart from the contractual interest rate due to special circumstances (respondent's delay in marketing the property).

The appellant appealed a summary judgment decision dismissing a defamation action.

The motion judge had granted summary judgment on the grounds that the statements made by the respondent were true.

The Court of Appeal found no palpable and overriding error in the motion judge's application of legal principles or factual findings and dismissed the appeal with costs awarded to the respondent.

The appellant appealed the dismissal of a personal injury action for delay.

The action arose from an accident in 2002, was issued in 2004 and served late.

At the time of the appeal decision, 14 years had passed since the action commenced and nearly 17 years since the accident.

The motion judge found the plaintiff responsible for the overall delay.

The Court of Appeal upheld the dismissal, finding the delay inordinate and inexcusable, with prejudice presumed from the length of delay and clear evidence of actual prejudice present.

The respondent brought a motion to add WSP Canada Inc. as a defendant in an ongoing negligence action arising from the rehabilitation of a bridge.

The motion judge granted the motion, finding that the respondent's claim against WSP was not statute-barred under the Limitations Act, 2002 because the claim was not reasonably discoverable within the two-year limitation period.

WSP appealed to the Court of Appeal.

The Court of Appeal quashed the appeal for lack of jurisdiction, holding that the motion judge's order was interlocutory rather than final.

The motion judge's determination regarding the limitation period was made solely for purposes of deciding the motion to add a party and did not finally determine the limitations issue, which could be relitigated at trial.

The appellant appealed the dismissal of his action for malicious prosecution against the respondent.

The trial judge had applied the correct legal test from Miazga v. Kvello Estate, which requires proof of four elements: initiation of prosecution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, and malice.

The appellant challenged the trial judge's findings on the second, third, and fourth elements.

The Court of Appeal found that the trial judge's conclusions were supported by the evidence and that the appellant failed to discharge his evidentiary burden on the balance of probabilities.

The appeal was dismissed.

The moving party (respondent on appeal) brought a motion for security for costs against the responding party (appellant), an insolvent representative plaintiff in a class action.

The moving party sought over $5.3 million for trial and appeal costs.

The Court of Appeal dismissed the motion, finding that the moving party had delayed significantly in bringing the motion, having known of the responding party's insolvency since 2012 but choosing not to seek security for tactical reasons.

This delay prejudiced the responding party by depriving it of the opportunity to seek funding from the Class Proceedings Fund and by allowing it to perfect its appeal at great expense.

The court also noted concerns about considering class members' assets when determining a representative plaintiff's impecuniosity.

The appellant appealed a summary judgment decision that found no arguable issue for trial regarding its claims for equitable and legal set off.

The Court of Appeal upheld the motion judge's findings that the equitable set off claims lacked the requisite close connection, and the legal set off claims were either for unliquidated damages or factually complex amounts not readily ascertainable.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed the motion judge's finding of contempt and the determination of a fit sentence.

The Court of Appeal found no error in the motion judge's decisions, noting the reasons were clear and correct.

The appeal was dismissed, and costs were awarded to the respondent.

The respondent contractor hired the appellant for epoxy flooring based on a sketch with inaccurate elevations.

When the appellant discovered the error and sought a price increase, the respondent refused, leading to a breach of contract claim and a counterclaim for lost profits.

The trial judge found for the appellant, but the Divisional Court overturned the decision on its own initiative, applying the doctrine of common mistake.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by deciding the case on unpleaded grounds and misapplying the doctrine of common mistake, as the mistake was the respondent's fault.

The appellants appealed an order striking out portions of their statement of claim.

The struck portions alleged that the respondent bank owed a duty of care to the appellants, who were not its customers, to inquire into its customer's activities to ensure the accounts were not used for fraudulent purposes.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the facts pleaded did not give rise to a recognized duty of care, nor did they warrant recognizing a new duty of care under the Anns/Kamloops principles.

The appellant appealed an order of the Superior Court of Justice, seeking a finding of contempt against the respondent.

The Court of Appeal found no basis for a finding of contempt and no error in the motion judge's reasons.

The appeal was dismissed with costs fixed at $3,000.

The appellant and respondent entered into a ten-year contract for the supply of ethanol.

The contract contained price-protection provisions, including a requirement for the appellant to match the price of an alternate supplier if certain conditions were met.

When the respondent received a lower offer from an alternate supplier, the appellant refused to match it, arguing that the obligation was contingent on the development of an active market for ethanol in Ontario under another section of the contract.

The trial judge found that the price-match provision operated independently.

The Court of Appeal upheld the trial judge's decision, finding that the plain wording of the contract and the factual matrix supported the conclusion that the provision was a stand-alone obligation.

The appellant appealed a judgment finding her liable for the outstanding balance of her former law firm's accounts for services rendered in matrimonial litigation.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's assessment of the accounts.

The trial judge properly considered relevant factors, including the nature of the services, time expended, and the appellant's ability to pay, and correctly noted that the appellant had acquiesced to the fees by making partial payments without complaint for many months.

The appellants, home renovators, appealed the dismissal of their claim against the respondent home owners and the allowance of the home owners' counterclaim.

The appellants argued the trial judge erred in placing the burden of obtaining building permits and licences on the contractor.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual findings regarding the contract, scope and quality of work, extras, and the cost of remedial work were supported by the evidence, including the finding that the home owners were incorrectly told a permit was not necessary.

The appellant appealed an order dismissing its motion to stay the action on the grounds of forum non conveniens.

The Court of Appeal found no error in principle in the motions judge's conclusion that Ontario was the proper forum, noting that Ontario law was likely the proper law of the insurance contract and that key witnesses were located in Ontario.

The appeal was dismissed with costs.

The appellants sought to introduce fresh evidence containing serious allegations regarding the conduct of the respondents' trial counsel.

The respondents' counsel, who also appeared on the appeal, failed to file a factum or responding material and sought an adjournment to challenge the fresh evidence, conceding his inexperience and lack of judgment.

Given the serious nature of the allegations, the Court of Appeal granted the adjournment and ordered the respondents to pay the appellants $2,500 in costs thrown away.

Following the release of the appeal decision, the parties disagreed on the settlement of the formal order regarding whether it should specify the date of termination of the commercial lease.

The Court of Appeal held that the omission of the termination date could be rectified under Rule 59.06 and determined by the remaining justices under s. 123(3) of the Courts of Justice Act.

The Court declared the lease was effectively terminated on November 19, 2001, noting this does not inhibit the trial judge's discretion on relief from forfeiture.

The Court of Appeal for Ontario issued an endorsement regarding the costs of an appeal in the context of Companies' Creditors Arrangement Act proceedings involving Air Canada.

The court awarded costs to the respondent, Air Canada, against the appellant, Global Payments Canada Inc., on a partial indemnity basis fixed at $46,000 inclusive of disbursements and GST.

The appellant employer appealed a trial judgment finding it liable for wrongfully dismissing the respondent employee.

The employer argued that the trial judge interfered in the conduct of the trial to such an extent that the image of judicial impartiality was destroyed.

The Court of Appeal agreed, finding that the trial judge unduly intervened by redirecting lines of questioning, extensively cross-examining the employer's witnesses, and requiring the production of a policy manual that was not part of the pleadings.

The appeal was allowed and a new trial was ordered.