Civil Litigation - Plaintiff - OCA

This costs endorsement follows the Court of Appeal’s decision allowing the appellants’ appeal in part.

The court found that the trial judge erred in requiring Mak Mera Limited to repay US$405,000 and in awarding $200,000 in defamation damages to James Bay Resources Limited.

The appellants were awarded costs of the appeal and, after submissions on trial costs, the court awarded the appellants $400,000 in trial costs, payable by James Bay, as a fair and proportionate amount in light of the appeal outcome and the parties’ relative success.

The appellant insurer denied third-party liability coverage to the owner of an ATV after his son, who held only a G1 licence, was involved in a serious accident while driving the ATV on a highway.

The motion judge found that the owner had only permitted his son to drive on a specific lane he mistakenly believed was not a highway, and did not permit him to drive on the highway where the accident occurred.

The motion judge concluded the owner was not in breach of Statutory Condition 4(1) at the time of the incident, and alternatively granted relief from forfeiture.

The Court of Appeal found no palpable and overriding error in the motion judge's factual findings regarding the scope of permission granted, and dismissed the appeal.

The appellant successfully appealed a summary judgment in a class proceeding.

The motion judge had found that the auditor owed a duty of care to the investor clients of Buckingham Securities regarding the audit of Form 9 reports filed with the Ontario Securities Commission.

The Court of Appeal reversed this decision, finding no duty of care was owed despite the auditor's negligence.

The appeal addressed the application of the Anns/Cooper test for establishing duty of care.

The court awarded the successful appellant costs on a partial indemnity basis.

The appellant insurer appealed the dismissal of its summary judgment motion regarding uninsured automobile coverage.

The respondent argued the Court of Appeal lacked jurisdiction because the order was interlocutory, not final.

The Court of Appeal agreed, holding that unless a motion judge explicitly invokes Rule 20.04(4) to make a binding determination of law, an order dismissing summary judgment is presumed interlocutory.

The appeal was quashed for lack of jurisdiction.

The appellants appealed an order dismissing their motion to set aside a default judgment in a slip and fall action.

The appellants claimed they only learned of the action when enforcement proceedings began, 12 years after the incident.

The Court of Appeal upheld the motion judge's finding that the appellants had evaded service, failed to act promptly, lacked a plausible explanation for their delay, and presented a defence of dubious merit.

The appeal was dismissed.

The appellant sued an employment agency after paying a fee for a promised job that never materialized.

The trial judge dismissed the claim, finding the respondents credible.

After the initial appeal was dismissed, a television program broadcast an undercover investigation exposing the respondents' deceptive practices.

The appellant moved to re-open the trial to adduce this fresh evidence, but the motion judge dismissed the request.

The Court of Appeal allowed the appeal, finding the motion judge's reasons inadequate and holding that the fresh evidence met the test for re-opening the trial as it was cogent, previously unavailable, and could have affected the trial's outcome.

The tenant appellants appealed a motion judge's refusal to set aside a default judgment obtained by the landlord respondent.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision because the appellants failed to provide affidavit evidence explaining their delay in responding to the Statement of Claim or establishing a plausible defence.

The court noted the respondent's undertaking to credit the appellants for any re-rental amounts received and directed that the final judgment be adjusted accordingly.

The appellant appealed an order requiring her to file a fresh Statement of Claim in the Superior Court rather than transferring her existing Small Claims Court claim.

The Court of Appeal dismissed the appeal, finding the motion judge correctly required a fresh claim because the original included improper references to settlement discussions and presented procedural issues.

The court also found no reasonable apprehension of bias and upheld the motion judge's decision to make no order as to costs.

The appellants challenged an order declaring them vexatious litigants, arguing that the responding party improperly proceeded by motion rather than application and that this procedural error required the judgment to be set aside.

The court held that the responding party should have proceeded by application, but found the misdescription caused no prejudice because the appellants had full notice of the case against them.

The court further rejected the argument that the appellants' application to lift an earlier stay had to be heard first.

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

The purchaser appealed a trial decision finding that open web steel joists were not part of the structural steel included in an agreement of purchase and sale for a commercial property.

The Court of Appeal allowed the appeal, finding that the trial judge erred by relying on extraneous documents to interpret the agreement.

The Amending Agreement and the documents specifically referenced within it, including the purchase order and structural drawings, clearly included open web steel joists.

As the vendor failed to provide the joists, they breached the agreement, and the funds held in trust were ordered returned to the purchaser.

Invesco sought leave to appeal orders sanctioning a Plan of Compromise and Reorganization under the CCAA and approving a settlement that released Ernst & Young LLP from claims arising from its auditing of Sino-Forest Corporation.

The Court of Appeal denied leave, finding that the proposed appeals failed to meet the stringent test for leave in CCAA proceedings.

The appeal of the Sanction Order was moot, and the issues regarding the third-party release in the Settlement Order were governed by the court's prior decision in ATB Financial.

The appellants appealed a decision allowing the Attorney General to assess their legal bills under the Solicitors Act.

The Attorney General was required to pay the bills under a 'Fisher' order, which provided that Legal Aid Ontario would vet and approve them.

The Court of Appeal held that this vetting did not preclude an assessment under s. 9 of the Solicitors Act.

The court also agreed that 'special circumstances' existed under s. 11 of the Act, given the trial judge's comments and the Attorney General's inability to move for an assessment before the trial concluded.

The appeal was dismissed with no costs.

The appellants appealed a decision restraining them from objecting to an application to extract aggregate from a property.

The Court of Appeal upheld the application judge's finding that the individual appellant used the appellant corporation as his agent to breach his personal covenant not to object to the extraction.

The substantive appeal was dismissed.

However, the court allowed the appeal on costs, reducing the lower court's costs award from substantial indemnity to partial indemnity, as the relative merits of the case did not justify the higher scale.

The appellant, manager of an income trust, appealed a decision regarding the interpretation of the trust's declaration of trust.

The dispute centered on the method and date for calculating the 'Net Realized Proceeds per Unit' for units redeemed by the respondents.

The Court of Appeal upheld the application judge's finding that the valuation date was the correct date for determining the redemption price under both calculation methods provided in the declaration of trust.

The appeal was dismissed with costs.

The individual appellant's appeal was dismissed as abandoned.

The corporate appellant's appeal was adjourned to allow for perfection, as the failure to perfect over fifteen months appeared to be due to miscommunication between lawyers and no prejudice was identified.

The adjournment was granted on strict terms, including the payment of $1,500 in costs thrown away to the respondents.

This insurer priority appeal concerned whether an injured 22-year-old qualified as an insured person under his mother's automobile policy because he was principally dependent on her for care while living with her on bail terms.

The Court of Appeal held that dependency for care under the Statutory Accident Benefits Schedule is not determined by a snapshot at the accident date and that the surety relationship, while relevant, is not determinative.

Applying a reasonableness standard to the arbitrator's mixed fact and law determination, the court found the arbitrator properly assessed the broader relationship and correctly concluded the injured person remained substantially independent.

The appeal was allowed, the arbitrator's decision reinstated, and responsibility for benefits remained with the insurer of the occupied vehicle rather than the mother's insurer.

The appellant appealed a motion judge's decision striking his statement of claim and dismissing his action against the Crown and College respondents.

The appellant had asserted claims based in negligence, malice, misfeasance in public office, and Charter breaches relating to the suspension of his OHIP payments.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the pleadings were seriously deficient, failed to disclose a reasonable cause of action, and that certain claims were res judicata.

The appellants appealed a trial judgment finding corporate breach of a distribution agreement, personal liability of a director, and awarding damages.

The Court of Appeal allowed the appeal in part, setting aside the finding of personal liability against the director as there was no evidence he acted outside his authority or for his own benefit.

The court also set aside the damages award, finding the trial judge erred in awarding mitigation costs beyond the notice period and relying on unproven financial statements.

The matter of damages and trial costs was remitted for a new trial.

The appellants appealed a trial judgment regarding a construction dispute, challenging the trial judge's assessment of a quantum meruit claim, the failure to award damages for delay, and the costs award.

The Court of Appeal dismissed the appeal, finding that the trial judge's assessment of reasonable labour and findings regarding delay were supported by the evidence and entitled to deference.

The court also declined to interfere with the discretionary costs award, fixing costs of the appeal at $15,000.

The appellant appealed an order allowing the respondents to proceed to trial on all claims after a default judgment was set aside.

At the initial trial, the judge dismissed the respondents' claims for interference with contractual and economic relations but granted an injunction and damages for false and misleading advertising.

The Court of Appeal held that issue estoppel precluded the respondents from relitigating the dismissed interference claims, even though the default judgment against the appellant was set aside.

However, the Court allowed the false and misleading advertising claims to proceed to trial for both an injunction and damages.

The appeal was allowed in part.