Civil Litigation - Plaintiff - OCA

The Court of Appeal for Ontario dismissed motions by tenants Michael Schram and Leslie Mitchell for an extension of time to file a notice of motion for leave to appeal and a notice of appeal regarding the termination of their tenancy and the dismissal of their action.

The court found that the proposed appeals lacked merit and that the justice of the case did not warrant an extension.

The court also dismissed the request for a stay of eviction and awarded costs to the responding parties.

The moving party, K. Matthew Hoang, sought leave to file a motion to reverse two prior Court of Appeal decisions, arguing misapprehension of evidence and lack of proper reasons.

This motion was brought after a history of extensive, unsuccessful litigation stemming from his 2011 employment termination, including multiple appeals to the Court of Appeal and Supreme Court of Canada.

The court, applying the guidance from Huang v. Braga, denied leave, finding the proposed motion lacked merit, was a continuation of abusive conduct, and was not in the interests of justice, emphasizing the need for litigation finality.

The moving parties, who had commenced an action alleging fraudulent conveyance and seeking a certificate of pending litigation (CPL), appealed the dismissal of their CPL motion.

They brought two appeals (to Divisional Court and Court of Appeal) and two motions in the Court of Appeal: one to determine jurisdiction (final vs. interlocutory order) and another for an interim CPL under s. 134(2) of the Courts of Justice Act.

The single motion judge declined to rule on the interim CPL, citing reservations about jurisdiction given the pending determination by a panel.

The judge adjourned the interim CPL motion to be heard concurrently with the jurisdiction motion on an expedited basis and extended the appeal perfection date.

The judge also commented on the systemic confusion regarding appeal routes in Ontario.

This is an appeal from a summary judgment granted in favour of the Bank of Montreal against Granville Cadogan, a lawyer.

The Bank alleged Cadogan made a knowingly false "law statement" in Ontario's electronic land registration system regarding a writ of seizure and sale.

The motion judge awarded damages and punitive damages.

Cadogan appealed, arguing the motion judge erred in refusing an adjournment and in relying on an incomplete evidentiary record.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's discretionary decision to refuse the adjournment, given Cadogan's pattern of obfuscation and lack of supporting evidence for his illness.

The court also found the evidentiary record sufficient to support the motion judge's conclusion that Cadogan's statement was false and knowingly made, noting his conduct was inconsistent with any belief of a settlement or release.

Class members who are not representative plaintiffs have no direct right of appeal from an order approving a settlement in a certified class action.

The Court of Appeal affirmed that the decision in Dabbs v. Sun Life Assurance Co. of Canada remains good law and has not been superseded by subsequent decisions.

A settlement approval order is neither a judgment on common issues nor a determination of aggregate damages, and therefore class members cannot seek leave to appeal under section 30(5) of the Class Proceedings Act.

Permitting individual class members to appeal settlement approvals would introduce uncertainty into settlement negotiations, undermine the authority of representative plaintiffs and class counsel, and impede the resolution of class actions.

The appellant appealed the motion judge's decision to strike her claim for negligent investigation on the basis that it was commenced beyond the two-year limitation period.

The appellant argued that the negligent investigation claim was interconnected with her breach of privacy claim, which the motion judge had allowed to proceed.

The Court of Appeal dismissed the appeal, holding that the two claims protect different legal interests and are distinct.

The motion judge's costs award was also upheld.

The appellant entered into a contract with the respondent for the storage of vaccines in a temperature-controlled warehouse.

The contract required the appellant to maintain all-risk property insurance.

After the cooling system malfunctioned and destroyed the vaccines, the appellant's insurer brought a subrogated action against the respondent and other contractors involved in the warehouse's operations.

The Court of Appeal upheld the summary judgment dismissing the action, finding that the insurance covenant barred the claim against the respondent (except for a $100,000 negligence carve-out) and that the other contractors were third-party beneficiaries of this protection.

The appellant employer appealed a summary judgment order awarding damages for wrongful dismissal to a 31-year employee.

The Court of Appeal found the motion judge erred by using a 'bridging-to-retirement' approach to calculate the notice period and by failing to deduct mitigation income.

However, the Court upheld the motion judge's alternative finding of a 22-month notice period, as well as the awards for loss of pension benefits and a contractual retirement allowance.

The appeal was allowed in part to deduct mitigation income and adjust the notice period calculation, and the cross-appeal was allowed to increase the notice period to 22 months and remit the costs issue.

The appellants appealed a partial summary judgment that decided a 'guarantee' issue and a 'priority' issue in favour of the respondent.

The motion judge made factual findings regarding the timing of a franchise transfer and the relationship between two companies based on documentary evidence.

The motion judge also dismissed the appellants' cross-motion regarding the interpretation of a settlement agreement, finding that the respondent could exercise multiple remedies upon default.

The Court of Appeal upheld the motion judge's findings, concluding they were properly made under Rule 20, and dismissed the appeal.

The appellants appealed a ruling on an application to interpret a settlement agreement that ended a joint venture for property development.

The agreement stipulated that the existing sales office for Stage I could not be used to sell Stage III lands.

The appellants alleged the respondents breached this by moving the sales office to Stage III lands and selling from it, despite changing its appearance.

The Court of Appeal upheld the application judge's finding that the clause was ambiguous and that the respondents' interpretation accorded with the agreement's purpose and good business sense.

The appeal was dismissed.

The appellant appealed a motion judge's decision dismissing a contempt motion against the respondent municipality.

The motion judge had found that the municipality attempted to comply with an order to provide the appellant with a copy of his file, and therefore was not in contempt.

The Court of Appeal found no error in this decision based on the affidavit evidence.

The appeal was dismissed with no order as to costs, though the municipality was directed to provide another copy of the file.

The appellants appealed a summary judgment enforcing a $500,000 promissory note and guarantee, arguing the action was barred by the limitation period and that the note should be treated as an advance on anticipated business profits rather than a loan.

The court held that, on the express terms of the note, the payee had a right but not an obligation to demand payment upon default, so the limitation period did not begin to run before the note’s maturity date.

The court also held that parol evidence could not be used to vary the terms of the promissory note.

The respondent’s cross-appeal seeking summary dismissal of the counterclaim as time-barred was also dismissed because the commencement of the limitation period for that claim remained a matter for trial.

The appellant voluntarily agreed to appear on the reality television show Dragons' Den and signed a consent agreement that precluded the two actions he subsequently commenced.

The appellant argued that it would be unconscionable to enforce the consent.

The Court of Appeal dismissed the appeal, finding that the appellant was given ample time to read the consent, did not ask for more time, and signed it without expressing any concern, making its enforcement not unconscionable.

The appellant brought a tort claim against his former wife following the final settlement of their matrimonial litigation.

The motion judge dismissed the claim, finding the appellant was precluded from proceeding.

The Court of Appeal upheld the decision, noting the appellant knew all necessary facts at the time of the matrimonial settlement and failed to pursue the claim or reserve his right to do so.

The appeal was dismissed with costs.

The appellant appealed an order regarding her qualification for survivor benefits under the respondent pension plan.

The respondent confirmed before the Court of Appeal that the appellant would continue to qualify for benefits as long as her academic institution considered her to be in full-time attendance, even with a reduced course load.

Given this assurance, the appellant achieved the result she sought by way of alternative relief.

The appeal was dismissed, with costs awarded to the respondent.

The appellant company appealed a summary judgment in favour of the respondent bank for an undisputed debt amount.

The appellant argued that the respondent had orally agreed to change the loan agreement so it was no longer payable on demand.

The Court of Appeal upheld the motion judge's conclusion that this argument lacked an air of reality and was not supported by the written agreement.

The appeal was dismissed.

The moving parties brought a motion to review an order of a single judge of the Court of Appeal, which refused an extension of time to apply for leave to appeal.

The moving parties had claimed at trial that they intended only to provide a character reference for the main borrowers, but the trial judge rejected their evidence.

Their appeal to the Divisional Court was dismissed.

The Court of Appeal agreed with the single judge that there was no basis for granting an extension of time, as the proposed leave motion raised only issues of credibility and had no chance of success.

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

The appellants appealed a trial judgment dismissing their insurance claim against Pembridge for late reporting and awarding only $4,000 in damages against their neighbours, the Aguiars, for nuisance causing water damage.

The Court of Appeal upheld the dismissal against Pembridge, finding the trial judge reasonably concluded the appellants breached the policy by reporting the claim four months late.

However, the Court allowed the appeal regarding damages against the Aguiars, finding the trial judge misapprehended evidence about standing water.

The Court reassessed damages at $12,500.

The appellants requested that the Court of Appeal change its judgment to award post-maturity interest at 10 per cent per annum as compound interest rather than simple interest.

The Court declined the request, noting that the appellants had not previously asserted a claim for compound interest and that the governing promissory note did not provide for it.

The award of 10 per cent simple interest was maintained.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded against the appellant on a partial indemnity basis.

The respondents were awarded a total of $70,000, distributed as $20,000 to the plaintiff, $30,000 to one set of defendants, and $20,000 to another set of defendants.