Civil Litigation - Plaintiff - OCA

The appellant, Black & McDonald Limited, appealed two orders staying their proceedings in Ontario in favour of British Columbia as the more convenient forum.

The first action was against Eiffage Innovative Canada Inc. and individuals for breach of contract and breach of trust related to a construction subcontract.

The second was against Liberty Mutual Insurance Company under a payment bond.

The Court of Appeal found that the motion judge erred in interpreting an "exclusive jurisdiction" clause in the prime contract as applicable to the subcontract, and that the forum non conveniens factors did not clearly favour British Columbia, thus the high standard to displace the plaintiff's chosen jurisdiction was not met for the Eiffage action.

For the Liberty Mutual action, the Court found the forum selection clause in the payment bond ambiguous and resolved it against Liberty Mutual, also noting the public policy against multiple proceedings risking inconsistent findings.

The appeals were allowed, and the actions were permitted to proceed in Ontario.

The appellant appealed an order enforcing a Settlement Agreement requiring payment of USD $200,000 upon satisfaction of a condition regarding the withdrawal of criminal charges in Panama.

The motion judge interpreted the condition as satisfied when the prosecutor provided written confirmation that charges were discontinued, despite an outstanding detention order/arrest warrant.

The appellant argued the motion judge misapprehended evidence and that the condition required both dismissal of charges and withdrawal of the detention order.

The Court of Appeal upheld the motion judge's interpretation, finding no error in the textual analysis of the Settlement Agreement and rejecting the appellant's application to adduce fresh evidence.

The appellant sought a motion to review a decision of the motion judge.

The motion judge had heard both the respondent's motion to stay proceedings and the appellant's motion for an extension of time simultaneously.

The Court of Appeal found no reversible error in the motion judge's discretionary order, as the motion judge had reasonably connected his decision on the respondent's motion to his disposition of the appellant's motion.

The motion to review was dismissed with costs fixed at $2,500.00 all-inclusive.

On remand from the Supreme Court of Canada following the Ledcor decision, the Court of Appeal for Ontario reconsidered its earlier dismissal of a class action appeal.

The appellant challenged Bell Mobility's seizure of prepaid credits, arguing that Bell's contractual terms and subsequent communications created an obligation to wait until after expiry before seizing funds.

The court affirmed its previous decision, holding that the expiry date was determined at the time of top-up purchase and reflected in the PIN receipts and phone cards, not in subsequent reminder messages or account page displays.

The court found that the appellant's real complaint concerned misrepresentation or promissory estoppel, neither of which were amenable to class proceeding resolution.

The plaintiff brought a proposed class action against the Toronto Police Services Board for mass detentions and arrests during the 2010 G20 summit.

After the motion judge dismissed the certification motion, the plaintiff narrowed her claims on appeal.

The Divisional Court allowed the appeal and certified two separate class actions.

The Court of Appeal dismissed the defendant's appeal, upholding the certification of the location-based subclasses and the detention centre class, finding that the narrowed claims met the certification criteria under the Class Proceedings Act.

The Court of Appeal allowed the plaintiff's cross-appeal on costs, increasing the costs award for the certification motion to $315,000 to reflect the legislative goal of access to justice.

The appellant sold his print services business to the respondents, who subsequently stopped making payments on the promissory note, leaving a balance of $94,600.

The appellant brought an application for judgment, which the application judge dismissed upon finding the appellant made a fraudulent misrepresentation regarding the value of the business equipment.

The Court of Appeal allowed the appeal, finding the evidence fell short of establishing fraudulent misrepresentation, and ordered the matter to proceed to trial due to the numerous factual disputes.

The appellants succeeded on a limitation issue in a class action appeal and sought costs for the appeal and the motion below.

The Court of Appeal declined to alter the motion judge's order that costs of the motion remain in the cause.

For the appeal, the court recognized the appellants' success but modified the costs award because the appeal raised a novel issue of law and involved access to justice considerations in a class action.

The court awarded costs of the appeal in the cause, fixing them at $20,000 for the Timminco appellants, $20,000 for the Photon Consulting appellants, and $10,000 for the Walsh appellant.

The appellants sought long-term disability benefits for a disability allegedly arising in 1990, despite their insurance policy having been cancelled that same year for non-payment of premiums.

The action was commenced in 2005.

The motion judge granted summary judgment to the respondent, finding the limitation period had expired and the individual appellant was not saved by the incapacity provision in s. 7 of the Limitations Act, 2002.

The Court of Appeal dismissed the appeal, agreeing there was no medical evidence demonstrating the appellant lacked the capacity to commence the action.

The appellant appealed a summary judgment dismissing her claim against the respondents.

The Court of Appeal upheld the motion judge's conclusion that there was no air of reality to the appellant's assertion that she believed the respondent was pursuing her tort claim.

The appeal was dismissed with costs.

The appellant appealed a trial judgment regarding the prudence of ending a tax appeal and the fairness of a purchase price.

The Court of Appeal found the trial judge's conclusions reasonable and noted the appellant led no contrary evidence.

The failure to deduct net proceeds of sale from the judgment was deemed a technicality correctable under rule 59.06(1).

The appeal was dismissed with costs.

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

The Court of Appeal found no error in the motion judge's careful and thorough reasons on either of the points argued.

The appeal was dismissed with costs awarded to the respondents.

The appellant sought to certify a class proceeding against Inco Limited for environmental contamination in Port Colborne, alleging that nickel oxide emissions caused a decline in property values following a 2000 Ministry of the Environment announcement.

The motion judge and Divisional Court refused certification, finding the class arbitrary and individual issues overwhelming.

The Court of Appeal allowed the appeal and certified the action, holding that the narrowed claim focusing solely on property devaluation met all certification requirements under the Class Proceedings Act, including identifiable class, common issues, preferable procedure, and suitable representative plaintiff.

The third party insurer appealed a motions judge's decision finding that an insurance policy was ambiguous and that the respondent was a member of the household for the purposes of coverage.

The Court of Appeal agreed with the motions judge's interpretation of the policy and his consideration of the respondent's pattern of usage of the cottage property.

Finding no palpable and overriding error in the mixed question of fact and law, the Court dismissed the appeal.

The appellant estate appealed a trial judgment finding that the owner of a motor vehicle was not vicariously liable for a fatal accident.

The plaintiff, who had the owner's consent to possess the vehicle, fell asleep in the passenger seat.

The deceased driver, who did not have a license or the owner's consent, took control of the vehicle and crashed.

The Court of Appeal upheld the trial judge's finding that the plaintiff was not in possession of the vehicle at the time of the accident, as the driver had taken possession without consent.

The appeal was dismissed.

The appellants appealed a summary judgment dismissing their action against the municipality for abuse of public office and conspiracy to injure.

The appellants alleged that the municipality passed zoning by-laws prohibiting 'monster' homes with the true purpose of preventing student housing.

The motion judge found no genuine issue for trial, concluding there was no evidence the by-laws were directed solely at the appellants or that student housing was specifically targeted.

The Court of Appeal found no palpable and overriding error in the motion judge's assessment of the evidence and dismissed the appeal, requesting further written submissions on the issue of costs.

The appellant appealed a decision, raising a challenge under section 2(b) of the Charter.

The Court of Appeal dismissed the appeal, agreeing with the lower court judge that a previous decision was determinative and that there was no evidentiary base to support the Charter challenge.

Costs were fixed at $12,500.

The appellants appealed a trial judgment regarding the wrongful distribution of corporate assets to themselves, to the detriment of the respondent shareholder.

The appellants argued the judgment should be set aside because the trial judge had also conducted the pre-trial conference, contrary to Rule 50.04.

The Court of Appeal dismissed the appeal, finding the appellants had explicitly waived any objection to the trial judge presiding and suffered no prejudice.

The Court also upheld the trial judge's findings on the wrongful distribution of assets and the imposition of liability on the appellants under the oppression remedy provisions of the Business Corporations Act.

The appellants moved to stay a post-trial order directing that money paid into court by the plaintiff as security for costs be paid out to the respondent's solicitors in trust.

The court held that a successful plaintiff at trial is entitled to the return of money posted as security for costs notwithstanding an appeal and rejected the attempt to preserve the security indirectly pending appeal.

The motion to stay was dismissed with costs.

The respondent's cross-motion to strike a ground in the supplementary notice of appeal was dismissed as moot without costs.

The appellants appealed an order enforcing Minutes of Settlement reached at mediation.

They argued that one appellant had not signed the settlement and had not agreed to its contents.

The court held that the other appellant signed on her behalf as her agent and that both defendants were represented by counsel at the mediation.

The Minutes of Settlement were valid and enforceable, and the appeal was dismissed with costs.

The appellant challenged both the trial judgment and the costs award arising from a dispute concerning consideration for shares and obligations under minutes of settlement.

The Court of Appeal rejected the attack on the trial judge’s factual findings, holding there was evidence to support the impugned findings.

However, it held the trial judge erred in principle in awarding solicitor-client costs because the pleadings, while strongly worded, did not amount to fraud or dishonest conduct warranting elevated costs and were not pursued unreasonably.

Leave to appeal costs was granted, the appeal on costs was allowed, and party-party costs were substituted, with the respondent recovering 90 percent of the costs of the appeal.