Civil Litigation - Plaintiff - OCA

The respondents sued the appellant for $580,000 paid pursuant to an oral contract for temporary foreign worker employment positions, alleging the contracts were fraudulent.

The appellant counterclaimed for $170,000 and pleaded equitable set-off.

The motion judge struck the defence of set-off.

On appeal, the Court of Appeal allowed the appeal, finding the motion judge failed to apply the Telford factors for equitable set-off and that the appellant's claim was proper given the close connection between the parties' claims.

The appellant insurer appealed a jury verdict awarding the respondent damages for injuries sustained in a motor vehicle accident.

The appellant argued the trial judge erred by refusing to grant a mistrial after the respondent's counsel made improper comments during his closing address, by giving an inadequate correcting instruction, by allowing an expert to testify beyond his report, and by refusing to order an assignment of statutory accident benefits.

The Court of Appeal dismissed the appeal, finding the trial judge's correcting instruction adequately addressed the improper comments, the evidentiary ruling was fair, and the appellant failed to prove the jury's future care award mirrored the respondent's uncertain accident benefits entitlement.

The plaintiffs invested in worthless start-up companies on the advice of their financial advisor, who was registered to sell mutual funds through the appellant dealer.

The advisor promoted these off-the-books investments openly from his office.

The trial judge found the dealer liable in negligence for failing to supervise the advisor and vicariously liable for his actions, concluding he was an employee rather than an independent contractor.

The Court of Appeal dismissed the dealer's appeal, upholding the findings that the dealer breached its duty to supervise its mutual fund sales agent and was vicariously liable for his wrongdoing.

The appellant suffered severe physical and psychological injuries, including a leg amputation and clinical depression, in a motor vehicle accident.

He sought enhanced statutory accident benefits, arguing he was catastrophically impaired.

The trial judge held that physical and psychological impairments could not be combined under section 2(1.1)(f) of the Statutory Accident Benefits Schedule to meet the 55 per cent whole person impairment threshold.

The Court of Appeal reversed this decision, finding that the language of the Schedule, the purpose of the American Medical Association's Guides, and the goals of the statutory scheme permit the combination of physical and psychiatric impairments to determine catastrophic impairment.

The appellants appealed the dismissal of their motion seeking to re-litigate a matter previously dismissed at trial in 2007, which had been upheld by the Court of Appeal and denied leave by the Supreme Court of Canada.

The appellants claimed they were bringing new evidence and a new cause of action for fraudulent misrepresentation.

The Court of Appeal upheld the motion judge's finding that the claims were not different from those previously decided and were barred by res judicata.

The appeal was dismissed with no costs.

The appellant appealed a trial judgment dismissing their claim against the respondents.

The Court of Appeal upheld the trial judge's finding that the risk of harm was not reasonably foreseeable, noting there was evidence to support this conclusion.

The appeal was dismissed with costs awarded to the respondent municipality, though the court expressed hope that costs would not be requested.

The appellant appealed the judgment of the motion judge.

The Court of Appeal found no error in the motion judge's reasons and dismissed the appeal, awarding costs to the respondents.

The appellants appealed a summary judgment granted in favour of the respondent for delivered goods.

The Court of Appeal dismissed the appeal, finding no trial was required as the appellants acknowledged they had no evidence the goods were not delivered.

The court also found no basis to reduce the agreed-upon interest rate or to stay the judgment pending the trial of the appellants' counterclaim.

The appellants sought leave to commence an action against a court-appointed Receiver for negligence and breach of fiduciary duty.

The motion judge dismissed the request, finding that the Receiver's conduct had already been scrutinized and approved in three previous proceedings.

The Court of Appeal upheld the decision, agreeing that issue estoppel and abuse of process barred the appellants from re-litigating the same facts and arguments.

The appeal was dismissed with costs fixed at $15,000.

The appellant appealed an order granting a request for international judicial assistance (letters rogatory) from a United States District Court.

The respondents sought to examine the appellant, a former manager of a Canadian oil company's subsidiary, regarding the company's alleged complicity in human rights violations in Sudan.

The Court of Appeal allowed the appeal, finding that while the request did not violate Canadian public policy, it was framed in terms so broad and general that the record could not sustain a finding that the evidence sought was relevant, necessary, or not otherwise obtainable.

The appellants appealed a motion judge's decision granting summary judgment and finding no genuine issue for trial regarding the respondent's possible negligence.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the limited evidence of erratic driving was too ill-defined to permit an inference that the oncoming driver could have or should have reasonably taken evasive action.

Costs of $6,000 were awarded to the respondent.

The appellant appealed a trial judgment dismissing his claim for constructive dismissal and finding him liable for competing with his former employer using confidential information.

The Court of Appeal found no palpable and overriding error in the trial judge's conclusion that the appellant's transfer to a new position did not constitute a material change or constructive dismissal.

The Court also upheld the finding of liability for breach of duty regarding confidential information.

The appeal was dismissed with costs.

The appellant appealed a trial judgment finding it liable for breach of contract and awarding damages to the respondent.

The Court of Appeal upheld the trial judge's finding that the appellant breached an implied term of the contract by unreasonably refusing to allow a pile of unmarketable mulch to be moved, thereby frustrating the respondent's performance.

The Court also upheld the damages assessment and the 30% reduction in damages, noting that while the trial judge erred in applying contributory negligence to a contract claim, the reduction was supportable on the basis of causation because the respondent failed to separate pulp from mulch.

The appellants appealed a jury verdict finding them liable for defaming the respondent in a series of newspaper articles.

The jury awarded $150,000 in general damages and $100,000 in aggravated damages against the publisher.

On appeal, the appellants argued the trial judge erred in his instructions on the defence of fair comment and that the aggravated damages award was inconsistent with the jury's finding of no malice at the liability stage.

The Court of Appeal dismissed the appeal, holding that the appellants failed to prove the underlying facts required for the fair comment defence, and that a finding of malice for aggravated damages can be based on post-publication conduct even if no malice existed at the time of publication.

The appellants appealed the dismissal of their application for rescission of an Agreement of Purchase and Sale and brought a motion to stay the appeal pending a subsequent action.

The Court of Appeal dismissed the motion to stay, finding the subsequent action was based on facts known at the time of the original application.

The Court also dismissed the appeal, upholding the application judge's interpretation of the Agreement of Purchase and Sale regarding the appellants' right of access.

The plaintiff was injured in a motor vehicle accident and commenced an action more than two years later.

The defendants brought a motion for summary judgment, arguing the action was statute-barred.

The motions judge dismissed the defendants' motion and instead granted summary judgment in favour of the plaintiff on the limitation issue, finding it was not reasonably discoverable within the first 35 days that the plaintiff had suffered a serious impairment.

The Court of Appeal dismissed the defendants' appeal, holding that under Rules 20.04(2) and (4), a motions judge has jurisdiction to grant summary judgment against a moving party, and that the medical evidence supported the conclusion that the limitation defence failed.

The appellant and respondent insurers disputed priority for statutory accident benefits following a fatal accident.

The deceased had exited his tractor trailer and was standing 30 feet away when he was struck by debris from another vehicle.

The arbitrator found the deceased was the 'driver' and thus an 'occupant' of the tractor trailer under the Insurance Act, making the respondent liable.

The appeal judge reversed this finding.

The Court of Appeal allowed the appeal, holding that the statutory definition of 'driver' does not require the person to be engaged in the act of driving or inside the vehicle at the exact moment of the incident, provided they maintain a physical connection and control over the vehicle.

The appellant client appealed the dismissal of his motion for summary judgment against his former solicitor.

The appellant sought a declaration that his liability for legal fees was capped at $2,500 per month, which the solicitor disputed.

The Court of Appeal dismissed the appeal, finding that the conflicting positions regarding the retainer agreement raised issues of credibility and documentary interpretation that could not be resolved on a summary judgment motion.

The matter was directed to proceed before an assessment judge.

The appellants sought to challenge an order directing that an assessment proceed without consideration of negligence and failure to follow instructions.

The Court of Appeal held that, because leave to appeal from the earlier order had been denied, it was not open to revisit the merits of that order on this appeal.

The assessment officer was therefore bound to proceed on the basis set by the prior order.

The appeal was dismissed with costs, although the court expressly stated it was not endorsing the proposition that no solicitor-client relationship existed.

On an appeal from an order refusing to add investor creditors as plaintiffs by counter-claim, the court held that a bank owed no fiduciary duty to unsecured creditors of its corporate customers merely because they shared a common debtor.

Applying the Anns/Kamloops framework, the court found no pleaded facts establishing proximity or reasonable reliance sufficient to create a prima facie duty of care in negligent misrepresentation.

The alleged statements to one guarantor did not support a relationship of reliance by a wider class of investors.

In any event, policy considerations barred recovery because recognizing such a duty would create indeterminate liability to an unlimited class.

The appeal was dismissed.