Civil Litigation - Plaintiff - OCA

In this commercial lease damages appeal, the appellants challenged findings that the respondent had reasonably mitigated its losses after replacement tenants vacated two units and that future rent losses were properly assessed.

The Court of Appeal held that the mitigation findings were factual determinations entitled to deference and that the appellants failed to adduce evidence showing the respondent's efforts were unreasonable.

The court also rejected the argument framed as remoteness respecting one unit, holding the real issue was mitigation.

The trial judge's use of a 50 percent reduction factor for uncertainty in future rent recovery was upheld, and the appeal was dismissed with costs.

The appellants appealed a defamation judgment arising from a series of newspaper articles alleging that a municipal engineering commissioner arranged an improper land payment to a developer friend while withholding planning information from council.

The Court of Appeal upheld the rejection of justification, fair comment and qualified privilege, finding ample support for malice based on a sensationalized, one-sided reporting purpose undertaken without regard for the facts, although one branch of the trial judge’s malice reasoning was set aside because the journalist had been unfairly restricted from explaining his intended meaning.

The court also upheld special damages for loss of employment and substantial general damages, finding a sufficient causal link between the defamatory publication and the respondent’s dismissal.

Punitive damages were set aside because the compensatory award was already sufficient to punish and deter.

The cross-appeal seeking increased damages was dismissed.

The appellants challenged findings that they had retained a law firm to prepare and file a prospectus and that the firm's general authority extended to retaining a printer.

The Court of Appeal held there was ample evidence supporting both factual findings and no basis to interfere.

The court upheld the conclusion that the law firm had authority to commit the appellants to pay for the printing.

The appeal was dismissed with costs.

The appellant challenged both the trial judgment and the costs award arising from a dispute concerning consideration for shares and obligations under minutes of settlement.

The Court of Appeal rejected the attack on the trial judge’s factual findings, holding there was evidence to support the impugned findings.

However, it held the trial judge erred in principle in awarding solicitor-client costs because the pleadings, while strongly worded, did not amount to fraud or dishonest conduct warranting elevated costs and were not pursued unreasonably.

Leave to appeal costs was granted, the appeal on costs was allowed, and party-party costs were substituted, with the respondent recovering 90 percent of the costs of the appeal.

The appellant appealed the dismissal of an action against a judge arising from conduct alleged to have occurred while hearing and deciding the appellant's earlier civil proceeding.

The Court of Appeal held that the pleaded allegations concerned acts done in the execution of judicial duties and therefore could not found a valid cause of action.

The court further held that the respondent's response to a complaint to the Canadian Judicial Council was also undertaken in the course of judicial office.

The appeal was dismissed with costs.

The appellants appealed the dismissal of a negligence action arising from a single-vehicle accident in which the driver was seriously injured after leaving a municipal roadway.

They argued the trial judge erred in describing the accident location, in finding the roadway warning signage adequate, and in concluding causation had not been proven.

The Court of Appeal held the location was well understood by the trial judge, the warning sign sufficiently communicated the sequence of curves and advisory speed, and the causation finding was entitled to appellate deference.

The appeal was dismissed with costs.

The appellants challenged a judgment upholding a municipality's distraint of chattels for unpaid taxes.

The Court of Appeal held the motion judge was entitled to find that the taxpayer had at least constructive possession of the chattels at the time of distraint, notwithstanding that the taxpayer had vacated the premises where they were kept.

The court further held that the sale of the chattels occurred before the taxpayer's bankruptcy, rendering the Bankruptcy and Insolvency Act and the cited appellate authority inapplicable.

The appeal was dismissed.

The appellant challenged a judgment in an insurance benefits dispute concerning whether a proposed rehabilitation expenditure was a reasonable expense.

The court accepted that a significant-benefit threshold would be erroneous, but interpreted the trial reasons as finding only that the evidence showed no more than an insignificant benefit in the circumstances.

It held that the trial judge was entitled on the record to conclude the proposed expenditure was not a reasonable expense.

Leave to appeal costs was granted, and the trial costs order was varied so that there would be no order as to costs of the trial; the appeal was otherwise dismissed without costs.

The appellants challenged judgments awarding the respondent recovery on a counterclaim and an equalization payment arising from a family farm and matrimonial property dispute.

The court held that the evidence supported the findings that amounts advanced by the respondent were repayable and that the valuation of assets and equalization calculation were supported by the record.

The court rejected a late-raised unequal division argument because it had not been pleaded and was not disputed at trial.

The order directing payment from monies paid into court from the sale of the milk quota was also upheld.

The appellant appealed the dismissal of its damages claim against insurance broker respondents arising from the absence of business interruption coverage at the time of a fire.

The court held that the trial judge made crucial factual findings that the need for such coverage had been discussed on multiple occasions and that the appellant's representatives knew the coverage was not in place.

The record also supported the finding that worksheets required for a quotation had not been completed before the fire.

The court found no basis to interfere with the conclusion that there was no breach of duty and dismissed the appeal with costs.

The appellant insurer appealed from summary judgment granted in favour of a bankruptcy trustee under an errors and omissions policy issued to the bankrupt insured.

The court held there were genuine issues for trial regarding the insured's state of mind when placing insurance with an unregistered offshore insurer and regarding whether the policy extended coverage although the insured was not a registered insurance broker.

Because the exclusion clause turned on whether the insured committed an intentional wrongful act, error or omission, the evidentiary record was insufficient to justify summary judgment.

The appeal was allowed, the summary judgment was set aside, and the action was directed to proceed to trial.

The appellant challenged the dismissal of a medical negligence action arising from a surgical procedure and alleged lack of informed consent.

The Court of Appeal held that the trial judge was entitled to accept the defence expert evidence that the surgery was not negligently performed, particularly where there was no effective cross-examination on the factual assumptions and no contrary expert evidence.

The court further held that there was evidence supporting disclosure of the material risk of permanent change in sensation, and no evidence that other asserted risks required disclosure.

Applying the modified objective test, the court upheld the finding that the appellant would have proceeded with the surgery in any event.

The appellant brokerage appealed the dismissal of its commission claim arising from an authority to sell.

The court held that the authority did not apply to a sale to a purchaser who had already been dealing with the respondents before the authority was signed, and that merely showing financial statements did not amount to showing the property in the circumstances.

The court also upheld the trial judge’s conclusion that, although the broker provided some assistance, it was not the effective cause of the sale.

The appeal was dismissed with costs and the money paid into court was ordered paid out to two of the respondents.

The appellants challenged an order refusing relief from a default judgment and raised issues concerning notice of a sale and prior proceedings, as well as the interpretation of the Conveyancing and Law of Property Act.

The court held that the motion judge reasonably found one appellant had not moved promptly enough to set aside the default judgment.

It also upheld the factual finding that the other appellant had notice of both the sale and earlier proceedings.

The statutory interpretation argument was rejected, and the appeal was dismissed with costs.

Commercial appeal arising from a bribery scheme that diverted a longstanding supply contract from the plaintiff to the corporate respondents.

The Court of Appeal held that the consultant and his company, although described by contract as independent contractors, functioned as integrated members of the corporate respondents' sales organization and therefore attracted vicarious liability under the organization test.

The court also held that the trial judge erred in refusing to re-open the trial after post-judgment affidavit evidence from the consultant implicated the principal officer in the bribery scheme, as the evidence was apparently credible and could not with reasonable diligence have been obtained earlier.

Judgment was granted against the corporate respondents for compensatory damages and prejudgment interest, punitive damages were not extended vicariously, and a new trial was ordered on the officer's personal liability.

The appellant appealed an order striking portions of a defamation claim for failure to comply with the notice provisions of the Libel and Slander Act.

The court held that multiple newspaper articles cannot be treated as a single libel for notice purposes unless their defamatory meaning depends on other publications.

It further held that the candidate-for-public-office provision in s. 5(3) does not exempt a plaintiff from giving notice under s. 5(1), but only affects the retraction-related consequences in s. 5(2).

The appeal was dismissed and the motion judge’s order was upheld.

The appellant sought to recover deposit monies on the basis that they were impressed with a trust if the underlying transaction failed to close.

The court held that the appellant met neither branch of the Quistclose requirements because the monies were advanced and used as a deposit for their intended purpose.

The respondents also had no notice at the time the monies were provided that any trust obligation attached to them.

The appeal was dismissed with costs.

Appeal from a summary judgment decision in a dispute involving a former senior employee who joined a competitor after signing a Canada-wide non-competition covenant and allegedly soliciting customers and employees.

The court held the evidentiary record was insufficient to declare the restrictive covenant enforceable on summary judgment, but equally insufficient to declare it unenforceable where the responding parties had not moved for that relief and genuine issues remained regarding customer relationships and geographic scope.

The court further held that the solicitation record disclosed genuine issues for trial concerning two groups of dentist customers, but not a third group.

The costs order was varied in light of the appellant's partial success, with each side to bear its own costs of the summary judgment motions and the appeal.

The appellant challenged a power of sale transfer of farm property on the basis that the mortgagee had failed to comply with the notice regime and stay provisions under the Farm Debt Review Act.

The court held that even assuming a later notice of sale served during the statutory stay was a nullity, an earlier amended notice of sale was not void merely because the creditor had not first given compliant notice under s. 22.

Applying prior authority, the court found the defect was a continuing breach and not fatal where the farmer became aware of the statutory protections, obtained the full stays available, and suffered no prejudice.

The court further held that a valid basis for the exercise of the power of sale could sustain the transfer even though the registered documents referred to a defective notice.

The appeal was dismissed with costs.

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.