Civil Litigation - Plaintiff - OCA

The moving party, a self-represented litigant subject to a vexatious litigant order, sought to abandon her appeal of an order dismissing her application for relief from candidacy ineligibility under the Canada Elections Act, and sought costs of the appeal against the Chief Electoral Officer.

The appeal was rendered moot after Elections Canada reinterpreted s. 65(i) of the Act and removed the moving party from the ineligibility list.

The court addressed whether a grant of leave under s. 140 of the Courts of Justice Act to commence a proceeding extends to appeals, holding that it does not and a fresh grant of leave is required.

Despite the moving party's failure to obtain leave, the court granted leave in the exceptional circumstances.

However, costs were declined, as the Agency's prior interpretation was reasonable and its proactive reinterpretation advanced Charter values.

The moving party sought panel review after a chambers judge refused to lift an automatic stay pending appeal.

Applying the deferential review framework for s. 7(5) CJA panel review, the court found no error in principle or unreasonable result and dismissed the review motion.

This is a costs endorsement from the Court of Appeal for Ontario.

The parties settled the issue of costs for the appeal.

The appellant, Anna Barbiero, was ordered to pay the respondent, Dr. Sheldon Victor Pollack, $10,000 in costs, inclusive of disbursements and applicable taxes.

The appellant, Essex Condominium Corporation No. 125 (ECC 125), appealed a partial summary judgment that dismissed its claim for unpaid common expense fees against the respondents based on a limitations defence.

The Court of Appeal found that the motion judge erred by reversing the burden of proof on the issue of discoverability under the Limitations Act, incorrectly placing the onus on the plaintiff to disprove that its claim was statute-barred.

The Court clarified that the burden remains on the defendant to prove the claim was discoverable.

The appeal was allowed, setting aside the summary judgment, and directing the claim for unpaid common expense fees to proceed to trial.

The appellants, a police officer and the police services board, appealed a trial judgment finding them liable for negligent police investigation of the respondents regarding stolen auto parts.

The trial judge had determined the standard of care without relying on expert evidence and awarded substantial damages.

The Court of Appeal allowed the appeal, holding that the trial judge erred in departing from the general rule that expert evidence is required to establish the standard of care for a professional, as the investigation was technical and the police conduct was not egregious.

The Court also found the trial judge erred in formulating the standard of care and failing to consider the respondent's committal for trial.

The judgment was set aside except for an agreed award for damaged property.

The appellants appealed the dismissal of their medical malpractice action following the death of a 22-year-old man in hospital.

The deceased had been switched from morphine to Dilaudid by the respondent physician, and the appellants alleged the dosage was excessive and caused his death by opioid overdose.

The trial judge accepted the respondent's expert evidence that the dosage met the standard of care and that the cause of death was not an opioid overdose.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to liability, standard of care, or causation.

The appellant appealed a summary judgment dismissing the action against the respondent vehicle owner.

The driver, who was impaired and caused a fatal accident, admitted he did not have the owner's consent to drive the vehicle.

The appellant argued the motion judge erred by applying a purely subjective test for implied consent and by not directing a trial of the issue.

The Court of Appeal dismissed the appeal, finding the motion judge properly considered all evidence and credibility, and correctly concluded he could resolve the dispute on summary judgment.

The appellant, a former police officer, sued for malicious prosecution and negligent investigation after criminal charges against him were withdrawn pursuant to a negotiated resolution agreement requiring his resignation.

The motion judge granted summary judgment dismissing the action, finding the criminal proceedings did not terminate in the appellant's favour.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the withdrawal of charges was a bona fide quid pro quo for the appellant's resignation, not an abandonment of prosecution or an abuse of power.

The appellants appealed the dismissal of a Rule 21 motion seeking to strike a condominium corporation’s action arising from alleged construction defects, including sanitary sewer failures and exterior cladding water penetration.

The court held that although Tarion’s warranty denial decisions were judicial and final for issue estoppel purposes, applying issue estoppel would work an injustice given the consumer protection purpose of the Ontario New Home Warranties Plan Act, the permissive language of the tribunal appeal provisions, the procedural limits of Tarion proceedings, and the advantage of resolving all claims in one forum.

The court further held that the civil action was not an impermissible collateral attack, that Tarion could be sued for payment from the guarantee fund, that the sanitary sewer allegations were not plainly outside the definition of major structural defect, and that the EIFS limitation argument failed.

The appeal was dismissed.

The appellant's action was dismissed by the motion judge for failure to post security for costs in accordance with a Master's order.

The appellant appealed the dismissal.

The Court of Appeal dismissed the appeal, noting that the appellant had not appealed the Master's order, had not complied with it, and had adduced no evidence of his alleged impecuniosity.

The appellants sought to introduce fresh evidence on appeal, specifically a memorandum containing foundational information for the final opinion of an expert retained by the respondents.

A single judge of the Court of Appeal ordered the production of the memorandum under Rule 31.06(3).

The respondents moved to set aside this order.

The Court of Appeal granted the motion, holding that Rule 31.06(3) applies only to the discovery stage of litigation and does not entitle a party to obtain disclosure after trial, especially when the party knew of the expert's final opinion prior to trial but failed to seek discovery of the foundational information at that time.

The appellant commenced a second action against the respondents to realize on a judgment for deposit monies obtained in a prior action.

The respondents successfully moved for summary judgment, filing five affidavits while the appellant filed no evidence.

On appeal, the Court of Appeal dismissed the appeal, finding no genuine issue for trial as the appellant failed to put its 'best foot forward' by filing evidence or conducting cross-examinations.

The court also declined to interfere with the motion judge's costs award.

The parties were involved in a joint venture agreement to develop land.

When the lender demanded repayment of its loan, the appellants did not pay their share.

The respondents used a non-arm's length company to purchase the loan and foreclose on the lands, appropriating the appellants' investment.

The appellants sued for breach of the joint venture agreement.

The trial judge dismissed the action, finding that none of the parties relied on the agreement's provisions and instead pursued self-interest outside its terms.

The Court of Appeal upheld the decision, ruling that a party cannot enforce an agreement it has demonstrated an intention not to be bound by.

The Attorney General for Ontario moved for a stay of an order requiring the production of a videotaped police statement in a civil action, pending an application for leave to appeal.

The videotape was made by the plaintiff regarding sexual assault allegations against a former teacher of the defendant school, and had already been disclosed to the accused in the related criminal proceedings.

The Court of Appeal dismissed the motion for a stay, finding no serious issue to be tried regarding the Master's jurisdiction or the application of litigation privilege, no irreparable harm, and that the balance of convenience strongly favoured the parties in the civil action.

The appellants appealed a finding of liability in a medical malpractice case, seeking to introduce fresh evidence that the respondent's trial expert witness had subsequently pleaded no contest to professional misconduct.

The Court of Appeal declined to decide whether to admit the fresh evidence, finding that even without the expert's testimony, the other evidence on record—including the respondent's own testimony and other medical evidence—supported the trial judge's conclusions on causation and informed consent.

The appellants called no evidence at trial to refute this.

The court also upheld the quantum of damages and dismissed the appeal with costs.

The appellants appealed an order dismissing their motion under Rule 21.01(1)(a) of the Rules of Civil Procedure.

They argued that the respondents' notice under s. 284(5) of the Municipal Act was invalid as a matter of law because it contained a wrong address.

The Court of Appeal dismissed the appeal, holding that the sufficiency of the notice raises a factual issue that is not appropriately determined on a Rule 21 motion.

The Toronto-Dominion Bank appealed a trial judgment declaring that all debts under a line of credit extended to the respondents were discharged and ordering the discharge of a collateral mortgage.

The respondents had obtained a line of credit secured by a second mortgage on their home, along with life insurance that would repay the loan if either died.

The bank improperly calculated monthly interest payments, leading to an apparent default, and subsequently demanded repayment.

This demand automatically terminated the life insurance policy.

When one of the respondents later died, the insurance company denied coverage.

The Court of Appeal dismissed the bank's appeal, finding that the bank's breach of the loan agreement by taking more than the minimum monthly payment led directly to the default and the subsequent demand, which in turn caused the termination of the life insurance policy.

Following an appeal judgment, the successful appellant sought costs against the respondents.

The Court of Appeal ordered that the costs be recoverable against both respondents jointly and severally, as they shared a community of interest in the appeal and filed a joint factum.

The appellants appealed an order dismissing their action on summary judgment on the basis of issue estoppel arising from a committee decision made in the course of a costs disposition.

The court held that the committee's finding that the proceedings were not unwarranted did not answer the central question whether the investigation and proceedings were undertaken in bad faith.

Because the first requirement of issue estoppel was not met, the summary judgment order could not stand.

The matter was remitted to the motions judge to determine whether there was otherwise a genuine issue for trial, and leave to admit fresh evidence was refused.

Appeal from a judgment requiring a homeowner to pay outstanding lumber invoices used in the construction of his residence after dismissal of a construction lien claim.

The appellant argued the evidence did not prove the lumber was ordered or delivered, and further argued he was merely an undisclosed principal not liable for unauthorized acts of his project manager and related entities.

The court deferred to the trial judge's factual findings on delivery and ordering, and held the appellant was liable for earlier invoices within the agents' actual authority and for later invoices through ratification once the agency relationship had become disclosed though the principal remained unnamed.

The appeal was dismissed.