Civil Litigation - Plaintiff - OCA

The appellant, Anna Barbiero, sought to overturn the dismissal of a 21-year-old certified class proceeding against Dr. Sheldon Victor Pollack for unlawfully injecting Liquid Injectable Silicone.

The motion judge dismissed the action for inordinate and inexcusable delay.

The Court of Appeal upheld the dismissal, emphasizing the need for a "culture shift" in civil justice to combat delay, finding the Langenecker approach to delay out of step with the Supreme Court of Canada's Hryniak decision.

The court found the 21-year delay inordinate and inexcusable, and the appellant failed to demonstrate error in the prejudice analysis or the exercise of discretion.

This is an appeal concerning an insurer's duty to defend.

The appellant, found not criminally responsible for an assault due to a psychotic episode, sought coverage under his homeowner's policy.

The insurer denied coverage based on an exclusion for bodily harm arising from intentional or criminal acts.

The application judge found the negligence claim derivative of an intentional tort and that the exclusion applied.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion that the true nature of the claim was an intentional act, despite the appellant's mental state, thus affirming the applicability of the exclusion clause.

The appellants' counsel failed to appear for the appeal hearing, with an assistant citing counsel's illness.

The Court of Appeal noted a lack of supporting medical documentation and expressed serious doubts about the veracity of counsel's position.

The court refused a request for an adjournment, dismissed the appeal as abandoned, and awarded costs to the respondents.

The plaintiff's action was dismissed for delay by the Registrar.

The Master set aside the dismissal, finding the delay was inadvertent and there was no actual prejudice to the defendants.

On appeal, the Superior Court judge reinstated the dismissal, finding the Master misapprehended the evidence and failed to consider the public interest in finality.

The Court of Appeal allowed the plaintiff's appeal and reinstated the Master's order, holding that the Master's discretionary decision was entitled to significant deference and his findings were reasonable.

The appellant, a condominium unit owner, appealed an order restricting his statutory right to examine condominium records and prohibiting him from coming within 25 feet of the management office.

The application judge had found his unrelenting requests amounted to harassment.

The Court of Appeal allowed the appeal in part, finding the complete elimination of his statutory right of access and the broad injunctive relief too extreme, especially since the conduct did not amount to actionable harassment.

The court set aside the injunctive components but upheld the requirements that requests be made in writing and photocopying charges be paid in advance.

The appellant bank appealed a summary judgment requiring it to honour three certified cheques.

The cheques were purchased using funds derived from a fraudulent mortgage scheme.

The motion judge had found no evidence that the respondent payee participated in the fraud and held that the bank was obliged to pay.

The Court of Appeal allowed the appeal, finding that the motion judge misapplied the burden of proof under the Bills of Exchange Act.

Because the bills were affected by fraud, the burden shifted to the respondent to prove he was a holder in due course.

Given the suspicious circumstances and credibility issues, there were genuine issues for trial.

The appellant appealed a motion judge's decision granting the respondent's motion to stay proceedings in Ontario.

The appellant argued the motion judge erred in finding Ontario had no jurisdiction based on presence or a real and substantial connection.

The Court of Appeal upheld the motion judge's application of the Muscutt factors, finding no palpable and overriding error in her factual findings or legal conclusions.

The appeal was dismissed.

The appellants brought a motion to restore their appeal to the hearing list after failing to strictly comply with a consent order.

The Court of Appeal granted the motion, finding that the failure was minimal, explained, and caused no real prejudice to the respondent.

No costs were ordered.

The appellant appealed a trial judgment concerning a property boundary dispute.

The appellant argued the trial judge erred by deciding the matter based on the equitable doctrine of rectification without allowing him to address it.

The Court of Appeal dismissed the appeal, finding no prejudice as the validity of the 1962 document was in issue and the appellant had abandoned his adverse possession claim late in the trial.

The court also upheld the awards for special damages for fence construction and punitive damages for reprehensible behaviour.

The plaintiff sought to examine the Honourable John Manley, a Member of Parliament, for discovery in a civil action.

The motion judge ordered the Member to attend no sooner than 15 days after the commencement of Parliament's summer recess, finding that parliamentary privilege against testifying only applied while Parliament was actually sitting and for 14 days after adjournment.

The Court of Appeal allowed the appeal, holding that the privilege of testimonial immunity extends throughout a parliamentary session, as well as 40 days before a session begins and 40 days after it ends.

The court concluded that any changes to this privilege must be enacted by Parliament, not the courts.

The respondent, an Ontario resident, was catastrophically injured in a single-vehicle accident in New Mexico while driving a vehicle registered and insured in New Mexico.

She sought statutory accident benefits from the Ontario Motor Vehicle Accident Claims Fund.

The trial judge declared her entitled to the benefits.

On appeal, the Court of Appeal upheld the finding that she was ordinarily resident in Ontario but allowed the appeal on the basis that the accident did not fall within the scope of Ontario's motor vehicle insurance regime.

The court held that Part VI of the Insurance Act did not apply because the vehicle was not required to be registered in Ontario and was not being operated in Ontario, meaning she had no recourse against the Fund.

The appellants sought leave to appeal a judgment for costs.

The Court of Appeal found no error in principle to justify granting leave.

Leave to appeal was denied and the appeal was dismissed with costs fixed at $8,500.

The appellants appealed a trial judgment dismissing their claim that their real estate agent breached her fiduciary duty by purchasing a mobile home for herself instead of for them.

The trial judge found that the agent did not misuse confidential information and understood the appellants were financially unable to purchase the home.

The Court of Appeal upheld the trial judge's findings, noting they were questions of mixed fact and law entitled to deference.

The Court also held that the appellants' conduct in renting the home from the agent for over a year precluded the equitable remedy of a constructive trust.

The appellant appealed a summary judgment dismissing its action against the respondent insurance company.

The Court of Appeal dismissed the appeal, finding no credible issue for trial as the plain words of the insurance policy's limitation period could not be avoided.

Costs were awarded to the respondent in the amount of $5,000.

The appellant appealed a judgment of the Superior Court of Justice, raising an argument for restitution that had not been tried or pleaded.

The Court of Appeal found no fault with the trial judge's analysis and findings, and dismissed the appeal with costs fixed at $5,000.

The appellant appealed the judgment of Justice Spence of the Superior Court of Justice.

The Court of Appeal agreed with the reasons and conclusions of the lower court judge and dismissed the appeal, awarding costs to the respondent.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal for Ontario disposed of the appeal by issuing an order on the terms of the consent filed by the parties.

The respondent sought costs on a substantial indemnity basis following the appellant's unsuccessful appeal.

The Court of Appeal awarded costs on a partial indemnity basis, fixed at $14,000.

The Court also adjusted the motion judge's costs award, reducing the hourly rate from $350 to $225, because the respondent's counsel had a special fee arrangement with the client that was not disclosed to the motion judge.

The Court noted that counsel operating under a special fee arrangement must disclose it, and costs cannot exceed the amounts actually charged to the client.

The appellants sued two dental regulatory Colleges in negligence, misfeasance of public office, and breach of Charter rights, alleging the Colleges failed to implement adequate standards to prevent temporomandibular joint injuries during dental hygiene treatments.

The motions judge struck the claims against the Colleges.

The Court of Appeal dismissed the appeal, applying recent Supreme Court of Canada jurisprudence to hold that the Colleges' statutory duty is to the public as a whole, not to individual patients, and therefore they owe no private law duty of care to the appellants.

The appellants appealed a decision enforcing letters rogatory issued by a California court against non-parties in Ontario.

The motion judge had found the evidence of the Ontario residents to be relevant and narrowed the scope of documentary production.

The Court of Appeal found no error in the motion judge's findings and dismissed the appeal.