Civil Litigation - Defendant - ODC

The plaintiff brought a motion to quash the defendant's appeal of a motion judge's order.

The motion judge had denied the defendant leave to bring a motion seeking answers to undertakings and refusals, and permission to amend its statement of defence and counterclaim.

The plaintiff argued the order was interlocutory and therefore could not be appealed under s. 71(3) of the Construction Lien Act.

The Divisional Court dismissed the motion to quash, finding that the denial of leave to amend the statement of defence effectively barred the defendant from raising substantive defences, rendering the order final rather than interlocutory.

Following an appeal, the successful respondents sought costs.

The appellants argued that no costs should be awarded, or costs should be reduced, because they were litigating in the public interest.

The Divisional Court rejected this argument, holding that costs should follow the event.

The court awarded the respondents costs on a partial indemnity basis, fixing fees at $25,000 for the appeal and $5,000 for the leave to appeal motion, plus $1,700 in disbursements and GST.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's order requiring the insurer to pay the claimant approximately $4,350 for attendant care and housekeeping services.

The insurer argued the arbitrator erred by relying on an excerpt from a medical report and by judging the claimant's credibility solely on her demeanour.

The Divisional Court dismissed the application, finding that the excerpt was properly in evidence as part of a larger report filed by the insurer, and that the arbitrator reasonably weighed credibility in the context of the evidence as a whole.

The standard of review applied was reasonableness.

The plaintiffs sought leave to appeal an interlocutory injunction granted in favour of the defendants in a dispute between two family-owned companies over commercial lease rent payments.

The plaintiffs argued the motions judge erred in finding irreparable harm and exceeded his jurisdiction by characterizing their conduct as illegal.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision and concluding the matter did not raise issues of public importance justifying a hearing by a full panel.

The Law Society of Upper Canada brought a motion to quash a summons to witnesses issued by the appellant, who sought to examine discipline counsel and investigators regarding their motivations in his disciplinary hearing.

The court granted the motion, finding the proposed questioning to be a fishing expedition, irrelevant under Rule 39 of the Rules of Civil Procedure, and an abuse of process.

The applicants sought leave to appeal a decision adding two solicitors and their law firms as intervening parties in a complex land transaction dispute.

The disputing parties had each initiated separate actions against the same lawyers for negligence.

The court found no conflicting case law regarding Rule 13 of the Rules of Civil Procedure in the context of private litigation, noting that the benchmark of caution applies but the need to avoid multiplicity of proceedings justified the intervention.

The motion for leave to appeal was dismissed.

The appellants appealed a trial judge's decision regarding an oral contract, arguing that the trial judge made findings of credibility and fact not supported by the evidence.

The Divisional Court found that the trial judge did not misread or misinterpret the evidence, and that her findings regarding the settling of accounts were supported by the record.

The court concluded there was no palpable or overriding error and dismissed the appeal, awarding costs of $2,000 to the respondents.

The Crown sought costs for an initial pleadings motion, motions for leave to appeal, and the appeal, claiming success in having portions of the action struck and obtaining a stay.

The respondent argued for costs, asserting general success.

The Divisional Court found success on the appeal was divided and awarded no costs for the appeal or leave motions.

However, the court found the respondent achieved substantial success on the original motion and awarded the respondent costs of the motion fixed at $27,000, reduced by 25% to reflect partial success.

The insured retained a public adjuster on a contingency fee basis to assist with a fire insurance claim.

The insured applied for a declaration that the adjuster's fees were a 'loss' under statutory condition 11 of the Insurance Act, and therefore subject to the appraisal process under s. 128.

The application judge agreed.

The insurer appealed, arguing that 'amount of loss' should be restricted to property damage.

The Divisional Court dismissed the appeal, finding that economic losses were covered by the policy and the enhancer endorsement, and that any ambiguity should be resolved in favour of the insured.

Following a series of motions related to an upcoming Divisional Court application, the successful plaintiffs and intervenor sought costs.

The plaintiffs sought costs on a substantial indemnity basis and requested they be payable personally by the opposing party's solicitor due to alleged misguided and improper conduct.

The court awarded costs on a partial indemnity scale to both the intervenor and the plaintiffs, payable by the opposing party, finding insufficient evidence to order costs personally against the solicitor at this stage.

The appellant appealed a decision refusing to certify an action against an investment advisor for negligence, misrepresentation, fraud, and conspiracy as a class proceeding.

The Divisional Court dismissed the appeal, finding that the motions judge made no error in principle and correctly concluded that a class action was not the preferable procedure due to the individual issues of detrimental reliance.

The mortgagees brought a motion to quash the mortgagor's appeal of an order fixing the amount required to redeem the mortgage.

The Divisional Court held that the underlying order was interlocutory, as it determined a procedural question rather than the substantive merits of the action.

Because the mortgagor had not obtained leave to appeal the interlocutory order as required by section 19(1)(b) of the Courts of Justice Act, the appeal was quashed.

The court granted the mortgagor a brief extension to move for leave to appeal.

The appellant appealed a Small Claims Court decision awarding the respondent $10,000 on a quantum meruit basis for unpaid boiler repair work.

The appellant argued the Small Claims Court lacked jurisdiction to grant equitable relief under section 96(3) of the Courts of Justice Act.

The Divisional Court dismissed the appeal, holding that quantum meruit is a common law remedy, not an equitable one.

Furthermore, the Court held that even if it were an equitable remedy, section 23(1) of the Act grants the Small Claims Court jurisdiction to award equitable relief in the form of monetary payments up to its jurisdictional limit.

The appellant investors appealed an order disqualifying their counsel and his merged law firm from continuing to represent them in a complex litigation against the respondent promoters.

The disqualification arose after the investors' law firm merged with another firm that had previously acted for the promoters in preparing the offering memorandum at the heart of the dispute.

The Divisional Court dismissed the appeal, finding that the merged firm failed to implement an ethical wall at the time the merger became effective, creating an irreconcilable conflict of interest and a risk of sharing confidential information.

The court appointed an inspector to investigate the affairs of the appellant corporation and ordered the appellants to fund the inspector's work.

The appellants appealed the order and argued that the funding requirement was an 'order for the payment of money' automatically stayed under Rule 63.01(1) of the Rules of Civil Procedure.

The Divisional Court held that an order to fund a court-appointed inspector is not an order for the payment of money, as it does not give monetary relief to a party and cannot be enforced by a writ of seizure and sale.

The court declared the automatic stay inapplicable and, in the alternative, exercised its discretion to lift the stay.

The appellants' cross-motion for a stay was dismissed.

The appellants sought to certify a class action against the federal government and others for alleged systemic physical, emotional, spiritual, and cultural abuse at a residential school operated between 1922 and 1969.

The motion judge dismissed the certification application, finding that a class proceeding was not the preferable procedure due to the highly individualized nature of the claims and the necessity of separate inquiries for each student.

The Divisional Court dismissed the appeal, upholding the motion judge's conclusion that the resolution of common issues would not significantly advance the litigation and that individual actions were the preferable alternative.

Following a successful judicial review application, the applicants sought costs of $113,017.43 on a partial indemnity scale.

The court reviewed the bill of costs and applied the principle that a costs award must reflect a fair and reasonable amount for the unsuccessful party to pay, rather than an exact measure of actual costs.

The court disallowed costs for proceedings before the administrative tribunal, reduced the hourly rates claimed for counsel, and found the hours claimed for preparation and submissions excessive.

Costs were fixed at $25,681.93 inclusive of disbursements.

The appellant hydro company and respondent property owner appealed a Small Claims Court decision finding them both liable in negligence for a power surge caused by a fallen tree limb that damaged the plaintiff's electrical equipment.

The Divisional Court found that the trial judge committed palpable and overriding errors by failing to determine whether the limb was dead or alive before assessing the property owner's liability, and by failing to properly analyze the hydro company's standard of care given uncontradicted evidence of its adherence to industry-standard tree inspection cycles.

The appeal and cross-appeal were allowed, and a new trial was ordered.

The appellants, minority shareholders in Colio Wines of Canada Ltd., appealed the dismissal of their application for an oppression remedy and the appointment of an inspector under the Ontario Business Corporations Act.

The appellants alleged that a 1992 amalgamation unfairly valued their shares at one cent each.

The Divisional Court upheld the application judge's finding that the appellants failed to provide cogent evidence that oppressive conduct appeared to have occurred, as required by s. 161(2) of the Act.

The court confirmed that mere suspicion or a report suggesting oppression 'may have been' present is insufficient to warrant the appointment of an inspector.

The appeal was dismissed.

The plaintiffs appealed an order dismissing their motion to amend their statement of claim to add a claim for negligent misrepresentation.

The motion was brought 13 years after the action was commenced and long after the relevant limitation period had expired.

The Divisional Court dismissed the appeal, holding that where a limitation period has passed, a plaintiff must show special circumstances to amend a pleading, rather than merely showing an absence of non-compensable prejudice to the defendant.

The court found no special circumstances and noted that the defendant would likely suffer real prejudice given the passage of time.