Civil Litigation - Plaintiff - OCA

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

The respondents (original plaintiffs) were found entitled to costs.

The court determined that costs should be awarded on a partial indemnity basis, as the appeal was not entirely without merit and the appellants' conduct was not criticized.

Costs were fixed at $12,000, inclusive of disbursements and taxes.

The appellants appealed a summary judgment granted on an outstanding mortgage debt.

They admitted the debt was outstanding but argued that fraudulent representations by their mortgage agent led to the mortgage.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the fraud allegations were the subject of a separate proceeding and did not preclude summary judgment on the debt.

The appellant appealed an order dismissing his motion.

The Court of Appeal found that the motion judge erred in concluding the appellant had requested numerous extensions prior to default judgment being signed.

The motion judge also erred by failing to consider whether the counterclaim raised a set-off when declining to grant the appellant an opportunity to file a motion to set aside the default judgment.

The appeal was allowed, and the appellant was granted 15 days to deliver a motion to set aside the default judgment.

The appellants appealed an order striking their statement of defence and counterclaim for failing to produce an affidavit of documents.

They argued the motion judge lacked jurisdiction because the order was purportedly made under Rule 76, despite the litigation continuing under the ordinary procedure.

The Court of Appeal dismissed the appeal, finding the order did not refer to Rule 76, and even if it had, it would be a mere technical irregularity that did not deprive the motion judge of jurisdiction.

The appellant condominium corporation appealed the dismissal of its motion for summary judgment regarding a lien registered against the respondent's unit for unpaid common expenses.

The Court of Appeal held that under section 85 of the Condominium Act, a separate lien arises upon each default, meaning late registration only invalidates liens arising more than three months prior to registration.

However, the appeal was dismissed because the appellant failed to provide adequate written notice for the subsequent liens, as notice of an expired lien cannot cover subsequent defaults.

The respondents suffered property damage when their rented hot water heater leaked.

They brought a subrogated claim in Small Claims Court and were awarded damages.

The appellant's appeal to the Divisional Court was dismissed.

The Court of Appeal dismissed the appellant's further appeal, relying on the reasons given in the companion case of Szilvasy v. Reliance Home Comfort Limited Partnership, which involved the application of s. 9(2) of the Consumer Protection Act, 2002 to the rental of a hot water heater.

The appellant, acting in person, brought a motion to remove the solicitors of record for the respondents on the appeal, alleging conflict of interest and misconduct.

The court dismissed the motion, finding no evidence to support the serious allegations.

The court emphasized the importance of a litigant's right to counsel of choice and noted that removing counsel would cause prejudice to the respondents, who relied on their counsel's ability to communicate in Farsi.

The respondent condominium corporation suffered flooding due to a failed standpipe system and sought $600,000 for its replacement under an all-risk insurance policy issued by the appellant.

The application judge found the loss was covered, ruling that a water hammer event caused the damage and that section 99(3) of the Condominium Act nullified the policy's exclusion for faulty design.

The Court of Appeal allowed the insurer's appeal, holding that the standpipe system was improperly designed before the insurer came on risk, making the failure a non-fortuitous event.

The court further held that the loss fell squarely within the policy's exclusion clause and that section 99(3) did not apply because the damage was not resultant damage.

The appellant appealed a decision dismissing their application, which alleged that a structured settlement in a personal injury action was intended to defeat, hinder, delay, or defraud their interests as a creditor.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the application judge's factual finding that there was insufficient evidence of the requisite intent.

The court also found no error in the application judge's discretionary decision not to draw an adverse inference against the respondent.

The appellant bank appealed a trial judgment dismissing its action against the respondent guarantor.

The respondent had personally guaranteed a $700,000 line of credit for his company and provided a $700,000 collateral mortgage.

After the company became insolvent, the respondent paid $700,000 to discharge the mortgage, but the bank demanded an additional $700,000 under the guarantee.

The trial judge found a common mistake, holding that the parties intended the mortgage to secure the guarantee, and rectified the agreement.

The Court of Appeal dismissed the appeal, affirming that the prerequisites for rectification of unilateral mistakes do not apply to common mistakes, and the trial judge's findings were reasonably supported by the evidence.

The appellant client appealed an order quashing a registrar's order for the assessment of solicitor's accounts rendered by the respondent law firm.

The motion judge had held that section 3 of the Solicitors Act required all bills, whether interim or final, to be assessed within one month of delivery.

The Court of Appeal allowed the appeal, finding that section 3 applies only to final bills, and the evidence showed the accounts in question were interim accounts.

The registrar's order for assessment was restored.

The parties reached a resolution prior to the hearing of the appeal.

Consequently, the Court of Appeal dismissed the appeal as abandoned.

The Crown appealed a trial judgment finding it liable for breach of contract and awarding $2.52 million in compensatory damages plus $400,000 in punitive damages to a software developer.

The trial judge found that the government deliberately undermined the objectives of a portal development agreement by secretly encouraging a subcontractor to develop a competing product, breaching an implied duty of good faith.

The Court of Appeal upheld the findings on liability and compensatory damages, concluding the government's conduct undermined the contract's business efficacy and the parties' reasonable expectations.

However, the Court set aside the punitive damages award, finding it served no rational purpose since the breach of good faith already formed the basis of the compensatory damages.

The developer's cross-appeal for lost market value and lost opportunities was dismissed.

The respondent was detained in a police holding cell and attempted to hang herself using her brassiere.

Police officers forcibly removed her clothing and, when she refused to move into the view of a video camera, handcuffed her to the cell bars while naked.

The trial judge dismissed her action for negligence, assault, and Charter breaches, finding the police acted reasonably and in accordance with policy.

The Divisional Court ordered a new trial on the basis that the trial judge failed to consider her dignity and privacy interests.

The Court of Appeal allowed the police officers' appeal and restored the trial judge's dismissal, holding that the trial judge did not ignore the evidence regarding her dignity and privacy, and that there was no palpable and overriding error.

The plaintiffs, Ontario residents, were involved in a motor vehicle accident in New York with the defendants, who were New York residents.

The plaintiffs commenced an action in Ontario against the New York defendants and their own insurer.

The New York defendants successfully moved to stay the action for lack of jurisdiction.

On appeal, the Court of Appeal applied the real and substantial connection test and the eight factors from Muscutt v. Courcelles.

The court concluded that assuming jurisdiction over the out-of-province defendants for a foreign accident would violate principles of order and fairness, and dismissed the appeal.

The appellant lien claimant appealed the dismissal of its application for a declaration that its non-possessory lien attached to a respondent's interest in trailers.

The court held that the respondent acquired rights in the trailers only upon repurchase, after the lien arose but before it was registered, engaging s. 10(1) of the Repair and Storage Liens Act and giving the respondent priority.

The court also rejected reliance on s. 63(11) of the Personal Property Security Act, noting that the PPSA does not apply to a statutory lien and that prior appellate authority had already limited the effect of that provision in this dispute.

The appeal was dismissed with costs.

The appellant appealed a trial judgment that reduced its damages for a breached commercial sublease due to a failure to mitigate, and dismissed its claims against the individual respondent for inducing breach of contract.

The Court of Appeal held that the appellant had no obligation to renegotiate the sublease to mitigate damages, increasing the judgment against the corporate respondent.

However, the Court upheld the dismissal of the personal claims against the individual respondent, finding he acted in good faith as the directing mind of the corporation, which breached the lease simply due to a loss of revenue.

The award of solicitor-and-client costs to the individual respondent was also upheld due to unsubstantiated allegations of fraud.

The appellant sought solicitor-and-client costs pursuant to Rule 49.10 based on an offer to settle.

The respondent argued the offer was ambiguous regarding costs and incapable of acceptance, and that the appellant failed to obtain the relief sought.

The Court of Appeal applied recent jurisprudence holding that uncertainty in an offer is only relevant to whether the party met its burden of proof under Rule 49.10.

The court found the appellant met its burden and awarded party-and-party costs to the date of the offer and solicitor-and-client costs thereafter.

The appellants, including a golf course developer and the Royal Bank, appealed a trial judgment finding them liable to a class of 169 club-member investors.

The investors had provided letters of credit to secure memberships, which were drawn down by the developer and applied to a Royal Bank construction loan before the contractual conditions for draw down were met.

The Court of Appeal upheld the trial judge's findings that the developer breached its contract and fiduciary duties by drawing on the funds prematurely.

The Court also upheld the finding that the Royal Bank was liable for knowing receipt of trust funds, as it was unjustly enriched and failed to make adequate inquiries despite knowing the conditions for draw down were unmet.

The appeal was dismissed, and the awards for restitution, punitive damages, and compound interest were affirmed.

The appellants, secured creditors of a bankrupt company, sought to amend their statement of claim in an Ontario action to allege informal liquidation and improvident realization by the respondent bank.

The respondent argued these issues were res judicata due to a prior Quebec court decision involving another creditor, in which the appellants had intervened.

The Court of Appeal held that the appellants were privies to the plaintiff in the Quebec action due to their active involvement and shared interest.

Therefore, issue estoppel applied, and the appellants were bound by the Quebec court's findings.

The appeal was dismissed, the cross-appeal allowed, and the motion to amend the statement of claim was dismissed.