Civil Litigation - Plaintiff - OCA

The Court of Appeal dismissed an appeal summarily as an abuse of process.

The appellant, Donald Hughes, had appealed the dismissal of his motion to vary a default judgment granted in a mortgage action.

The Court of Appeal found that while the order dismissing the motion to vary was a final judgment, making it appealable to the Court of Appeal, the appeal itself constituted an abuse of process due to lengthy and unexplained delay, prejudice to the respondent, and a lack of judicial economy, especially given that the proper venue for disputing the debt was the bankruptcy court.

The appellant appealed a trial judgment that rejected her claim of a partnership for a residential property and found her not credible.

The trial judge had also awarded punitive damages against the appellant in favour of one respondent.

The Court of Appeal dismissed the appeal regarding the partnership, upholding the trial judge's factual findings and credibility assessments, which were entitled to deference.

However, the Court of Appeal set aside the punitive damages award, reiterating that such damages require an independent actionable wrong, which was absent in this case.

This is a costs endorsement on appeal from a Superior Court judgment dated September 26, 2017.

The appellants challenged the lower court decision, and the Court of Appeal addressed the issue of costs for the motion below.

The parties agreed that the costs determination should be remitted back to the trial judge for decision at a later time, pending clarification of the value of the claims and the effect of any Rule 49 settlement offers.

The applicant sought a review of a motion judge's decision refusing to set aside the dismissal of an appeal for delay.

The original appeal concerned a judgment ordering the applicant to pay amounts owing on a collateral mortgage securing a line of credit.

The motion judge found that the applicant's explanation for the delay was unconvincing, as he had an obligation to manage his affairs while out of the country, and that the merits of the appeal were weak.

The Court of Appeal upheld the motion judge's decision, finding no error in the reasoning and dismissing the review motion with costs awarded to the respondent.

The appellant appealed from a motion judge's order dismissing his motion to set aside a default judgment dated July 4, 2016.

The appellant had been served with a statement of claim alleging he had provided an oral personal guarantee for $50,000 on a loan agreement.

The appellant failed to defend the action and was noted in default, resulting in a default judgment being entered.

The motion judge dismissed the appellant's motion to set aside the default judgment, finding that the appellant had acknowledged his debt through communications with the respondent and had deliberately delayed responding to the claim.

The Court of Appeal upheld the motion judge's decision, finding no overriding or palpable error or error of law in the exercise of discretion.

The appellants appealed the motion judge's decision to strike paragraph 25 of their statement of claim, which alleged that the respondent West Face distributed a defamatory report to unnamed third parties whose identities were known to West Face.

The appellants had already established a prima facie case of defamation by alleging publication to named persons at a specified time and place.

The Court of Appeal held that the motion judge erred in striking the paragraph, finding that the appellants had demonstrated they were proceeding in good faith with a prima facie case and were not on a fishing expedition.

The court allowed the appeal and set aside the order striking paragraph 25.

Following an appeal where one appellant was successful and the other unsuccessful, the appellants brought a motion to readdress costs.

Counsel for the appellants had previously agreed to a costs arrangement but later realized he made an error regarding the successful appellant's costs.

The Court of Appeal allowed the correction in fairness to the successful appellant and apportioned the trial and appeal costs accordingly.

The appellant bank sought to appeal an order dismissing its motion to compel a third-party mortgagee to provide a mortgage discharge statement for property owned by judgment debtors.

The appellant argued that a previous binding decision was decided per incuriam.

The Court of Appeal quashed the appeal, finding it lacked jurisdiction because the motion judge's order was interlocutory, as the appellant could still seek to examine a representative of the third party under the Rules of Civil Procedure.

The appellant appealed an order striking her claim against a mortgagee for improvident sale and damage to personal property.

The Court of Appeal dismissed the appeal, finding that the appellant, as a beneficial owner, lacked standing to sue for improvident sale, as standing lies with the trustee who holds legal title.

The court also upheld the motion judge's finding that the claim for damage to personal property was statute-barred.

The plaintiffs appealed a summary judgment dismissing their medical malpractice action against two paramedics and an ambulance service.

The motion judge had found that while the standard of care was a genuine issue for trial, causation was not, relying on the defendants' expert opinion that the patient's survival rate was only 2.4 percent.

The Court of Appeal allowed the appeal, finding that the motion judge erred in relying on the defendants' expert opinion because it did not address the plaintiffs' theory of the case, which posited that the patient would have survived had she been transported to the hospital immediately while she still had a heartbeat.

The Court concluded that both standard of care and causation were genuine issues requiring a trial.

The appellant appealed an order striking out his claims for inducing breach of contract and intentional interference with economic relations on a Rule 21 motion.

The Court of Appeal allowed the appeal, finding that the appellant had pleaded the necessary elements for inducing breach of contract, and that any defences based on implied terms or justification could not be resolved on a Rule 21 motion.

The court also found the cause of action for intentional interference with economic relations was pleaded, though the appellant could seek leave to amend to provide more particularity regarding the unlawful means element.

The appellant sued the respondents for damages arising from the alleged wrongful repudiation of an agreement of purchase and sale for a new home.

The respondents had originally agreed to purchase the home from a builder, but the builder's agreement prohibited assignment or sale without consent.

The appellant and her husband, an experienced real estate broker, knew of this prohibition but still entered into an agreement with the respondents to purchase the property.

The trial judge dismissed the action, finding the agreement was illegal as it was designed to defeat the builder's rights.

The Court of Appeal upheld the decision, concluding that the courts will not assist a plaintiff in recovering damages for the breach of an agreement intended to circumvent the known rights of an innocent third party.

The appellants appealed the dismissal of their personal injury claim.

The trial judge had found the plaintiff's evidence regarding how the accident occurred to be confusing and inconsistent due to her age and illness, and drew an adverse inference from the failure to call a witness to the accident.

The Court of Appeal upheld the trial judge's findings, concluding there was no prima facie case of negligence, and dismissed the appeal with costs.

The appellant garnishee appealed an order from a garnishment hearing, arguing the motion judge reversed the burden of proof, improperly admitted transcript evidence from the judgment debtor's trial, and failed to give weight to a former solicitor's evidence.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's approach to the burden of proof, the admission of the transcript, the adverse inference drawn from failing to call the judgment debtor, or the weighing of evidence.

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

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the issue of unlawful possession of a booth had already been raised, considered, and determined in the respondent's favour during proceedings in New Jersey.

The issue of possession was fundamental and integral to the determination of the appellant's set-off and recoupment claim.

The appellants appealed a trial judgment regarding a construction dispute, challenging the trial judge's assessment of a quantum meruit claim, the failure to award damages for delay, and the costs award.

The Court of Appeal dismissed the appeal, finding that the trial judge's assessment of reasonable labour and findings regarding delay were supported by the evidence and entitled to deference.

The court also declined to interfere with the discretionary costs award, fixing costs of the appeal at $15,000.

The plaintiffs contracted with the defendant moving company to move and store their household goods.

The defendant assured the plaintiffs that their goods would be secure in a locked trailer on the defendant's lot.

However, the trailer was left unattended on a public street overnight and was stolen.

The defendant admitted liability but sought to rely on a limitation of liability clause limiting damages to $0.60 per pound.

The trial judge found the clause unenforceable.

The Court of Appeal upheld this decision, finding that enforcing the limitation clause would be unconscionable given the false assurances of security.

The appeal was allowed only to set aside damages awarded to the plaintiffs' corporations.

The appellants and respondents owned cottage properties on Lake Erie.

The trial judge found the appellants had acquired prescriptive easements for parking and a pier on the respondents' land, but applied equitable proprietary estoppel to impose annual licence fees.

The Court of Appeal held the trial judge erred in applying the equitable doctrine without a finding of unconscionability, setting aside the licence fees.

The Court dismissed the respondents' cross-appeal, upholding the findings that parking was reasonably necessary for the enjoyment of the dominant tenements, and that proprietary estoppel was established for a well and concrete blocks.

The appellant was injured in a motor vehicle accident and sought a determination of whether she could recover no-fault medical and rehabilitation benefits beyond the 10-year benefit period under the Statutory Accident Benefits Schedule, provided the need for such expenses was established with certainty within the 10-year period.

The Court of Appeal held that the plain meaning of section 6(1) of the SABS requires that the expenses result within the benefit period.

Therefore, expenses for treatments and services provided beyond the 10-year anniversary of the accident are not recoverable.

The appeal was dismissed.

The appellant parents appealed the dismissal of their summary judgment motion seeking a declaration that their tenant's liability insurer owed them a defence and indemnity in an action arising from an assault committed by their sons.

Although the sons' intentional assault claims fell within the bodily injury exclusion, the court held the parents were separately insured under the policy and the negligence claim against them for failing to supervise and properly raise their children was a distinct, non-excluded claim.

The court distinguished the Supreme Court of Canada's duty-to-defend analysis in sexual assault pleadings because the negligence allegations here constituted a separate tort against different parties rather than a relabelling of intentional wrongdoing.

The insurer was therefore required to defend the parents and indemnify them for any covered judgment, costs and interest.