Civil Litigation - Plaintiff - OCA

An appeal concerning the vicarious liability of co-owners of a motor vehicle under the Highway Traffic Act and the scope of insurance coverage under the Insurance Act.

The appellant insurance company argued that where two co-owners jointly own a vehicle, only the co-owner who consented to a third party's possession of the vehicle should be vicariously liable for negligent operation by that third party.

The court rejected this argument, holding that if either co-owner consents to possession by a non-owner, both co-owners are vicariously liable under section 192(2) of the Highway Traffic Act.

The court also clarified that section 239(1) of the Insurance Act does not create liability but merely requires coverage of liabilities imposed by law.

The appellant, Ms. Wong, appealed a lower court's finding of civil fraud against her, which arose from her misrepresentation to Aviva Insurance Company of Canada regarding who was driving during a motor vehicle accident.

The original application sought a declaration that Aviva owed her a defence, which was denied due to policy breach and civil fraud.

The Court of Appeal dismissed the appeal, affirming that Aviva had suffered a real, albeit unquantified, loss due to Ms. Wong's actions, specifically in terms of its ability to defend the main action, thereby satisfying the loss element of civil fraud.

The appellant sought to certify a class proceeding alleging a price-fixing conspiracy in the Canadian canned tuna market.

The motion judge dismissed the certification motion, finding a failure to plead material facts for a reasonable cause of action and an insufficient evidentiary basis for common issues.

The Court of Appeal upheld the dismissal, agreeing that the claim lacked material facts to support a Canadian conspiracy and that there was no sufficient factual basis for the proposed common issues, particularly given the distinct Canadian and U.S. tuna markets.

The court also confirmed its jurisdiction to hear the appeal, as the lower court's order effectively ended the proceeding.

This is a costs endorsement following the dismissal of an appeal.

The Court of Appeal for Ontario determined that the appeal was not devoid of merit or frivolous, and there was no partial success or misconduct by the respondent.

Consequently, the respondent was awarded partial indemnity costs.

The appellant, Kay Hon, appealed a summary judgment granted in favour of the respondent developer, Forest Hill Homes (Cornell Rouge) Limited, for failure to close on a home purchase.

The appellant argued the motion judge erred in finding no misrepresentation by the developer's agent regarding agency, and that summary judgment should not have been granted while a third-party claim remained outstanding.

The Court of Appeal found no clear and palpable error in the factual finding regarding agency, noting the appellant's own evidence and the agreement confirmed the agent acted for the vendor.

The court also held that the main action and counterclaim were sufficiently distinct from the third-party claim to allow for summary judgment, and clarified that the motion judge's observations on the third-party claim were not binding findings.

The appeal was dismissed.

The Court of Appeal for Ontario issued a costs endorsement following an appeal brought by the Debtor, Wayne Biggar.

The Court found that Mr. Biggar's appeal was brought to the wrong court and constituted an obvious delay tactic.

As a result, the Creditors, Jack Pinder, Victor Dusik, and Innotech Safety Solutions Inc., were awarded substantial indemnity costs fixed at $11,500, inclusive of disbursements and applicable taxes, payable by Mr. Biggar within five days.

Varcon Construction Corporation appealed a partial summary judgment granted to 2099082 Ontario Limited (AWD Contractors) concerning a construction subcontract dispute.

Varcon's appeal challenged findings that AWD's work was not deficient and that AWD did not fail to rectify deficiencies.

AWD cross-appealed the motion judge's decision to order a trial on the subcontract's warranty provisions.

The Court of Appeal dismissed Varcon's appeal, finding no palpable and overriding errors in the motion judge's factual findings.

The Court allowed AWD's cross-appeal, determining there was no genuine issue requiring a trial on the warranty, as a plain reading of the contract did not support Varcon's interpretation that AWD was a general guarantor for all project defects.

The appellants failed to appear for the hearing of their appeal scheduled before the Court of Appeal for Ontario, despite the case being held down until 11:25 a.m.

The appellants had previously requested an adjournment which was refused.

The appeal was dismissed as abandoned, and costs were fixed in favour of the respondent.

The appellants appealed a summary judgment granted in favour of the respondent regarding a loan facility.

The Court of Appeal dismissed the appeal, finding that the motion judge properly relied on the documentary record, which contradicted the appellants' vague assertions.

The Court held that the summary judgment test from Combined Air was met, as a full appreciation of the evidence could be achieved, and declined to draw an adverse inference against the respondent regarding its choice of affiant.

The plaintiff, an Ontario resident, brought an action in Ontario alleging a conspiracy by the defendants to use fraudulent bankruptcy proceedings in Quebec to defeat the process of the Ontario courts.

The defendants moved to dismiss or stay the action on jurisdictional grounds, and the trustee in bankruptcy moved for a stay because the plaintiff failed to obtain leave under s. 215 of the Bankruptcy and Insolvency Act.

The Court of Appeal upheld the motion judge's finding that Ontario had jurisdiction simpliciter and was not forum non conveniens.

However, the Court allowed the trustee's appeal in part, holding that the action against the trustee must be stayed until the plaintiff obtains leave from the Quebec Superior Court.

Following an oral decision allowing the appeal, the successful appellant sought its costs at trial, which it had requested in its written materials but omitted from its oral costs submissions.

The Court of Appeal issued a supplementary endorsement granting the appellant its costs at trial, to be assessed if not agreed.

The appellant appealed a trial judgment finding an enforceable agreement to pay a success fee and assessing damages.

The Court of Appeal dismissed the appeal, holding that the trial judge did not err in finding an agreement and that her assessment of damages, based on factors such as amounts typically paid to investment bankers, time spent, and value added, was reasonable.

The appellant appealed an order converting an application into a trial.

The Court of Appeal raised the issue of whether the order was interlocutory, which would deprive the court of jurisdiction.

The appellant argued the order was final because it was against a non-party and ended a summary procedure.

The Court of Appeal rejected these arguments, finding the order was only against the appellant and simply converted the application into a trial within the same court.

The appeal was quashed as the order was interlocutory.

The appellants appealed a judgment finding that the respondent acquired ownership of disputed land through adverse possession.

The parties' predecessors in title had severed a property in 1960 and mistakenly believed the boundary divided a pond equally, contrary to the registered metes and bounds description.

The Court of Appeal dismissed the appeal, affirming that the test of inconsistent use does not apply to adverse possession claims based on mutual mistake.

The court upheld the finding of adverse possession but modified the order to grant an easement rather than a conveyance for a specific portion of the land.

The appellants appealed a trial judgment declaring the respondent the owner of a parcel of land and ordering its conveyance.

The trial judge found that the appellants promised to convey the land to the respondent in exchange for road construction work.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's factual findings.

The Court also held that the agreement was not frustrated by municipal conditions and that written municipal applications signed by the appellant satisfied the requirements of section 4 of the Statute of Frauds.

The appellants appealed a costs order, arguing that their Rule 49 offer should have attracted cost consequences.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion.

The trial judge correctly held that the offer lacked clarity, particularly regarding multiple claimants and the absence of reference to the Family Law Act claimant.

The Court affirmed the policy that Rule 49 offers must be crystal clear to be effective.

Following an appeal where success was divided, the court issued an endorsement on costs.

The court ordered that no costs of the appeal be awarded to either party.

Furthermore, the court declined to clarify its reasons, directing the parties to settle the order in accordance with Rule 59.04 of the Rules of Civil Procedure.

The appellants appealed an order refusing to enjoin the respondents from pursuing a motion in the United States to access testimony and documents obtained through the US discovery process.

The Court of Appeal dismissed the appeal, finding no comity concerns or overriding policy issues that would warrant an injunction.

The Court held that the respondents were legitimately attempting to gather evidence in a foreign jurisdiction according to its rules, and that the US judge was in the best position to determine whether and how to vary the protective order.

The appellants appealed a summary judgment order.

The Court of Appeal allowed the appeal, finding triable issues regarding whether the president of Lason Canada had a duty to disclose off-balance sheet payments and whether he participated in including tailwind revenues, both of which allegedly inflated the EBITDA calculation.

The summary judgment was set aside and the motion dismissed.

The landlord appealed the dismissal of its action for rent arrears against the tenants.

The trial judge had found that the landlord's demolition of a dilapidated barn and frame house on the 20-acre leased property constituted 'partial destruction of the premises' under the lease, thereby suspending the tenants' obligation to pay rent.

The Court of Appeal allowed the appeal, holding that the trial judge failed to interpret the lease as a whole to achieve a commercially sensible result.

The Court found that the term 'premises' in the destruction clause applied only to the private dwelling, and thus the demolition of the outbuildings did not suspend the rent obligation.

Judgment was granted for the total rent owing.