Civil Litigation - Defendant - ODC

The defendant sought leave to appeal a trial judge's decision not to award him costs after successfully defending a motor vehicle accident claim.

The jury found the defendant liable but awarded only $3,000 in damages, and the trial judge subsequently dismissed the action on a threshold motion.

The trial judge declined to award costs to the successful defendant, citing the plaintiff's difficult circumstances, the complexity of the medical history, and the fact that the plaintiff had established liability and some injury.

The Divisional Court dismissed the application for leave to appeal, finding that the trial judge did not exercise his discretion based on a misapprehension of facts or an erroneous principle of law.

The appellants appealed a Master's order granting summary judgment and dismissing their medical malpractice action.

The action arose from the death of the appellant's wife following delayed surgical intervention for a ruptured aortic valve.

The Divisional Court upheld the Master's decision, finding that while the appellants presented some expert evidence of a lost chance of survival, they failed to provide evidence establishing on a balance of probabilities that the death would have been avoided with prompt surgery.

The appeal was dismissed.

The plaintiffs appealed a jury award of $750 in damages arising from a motor vehicle accident.

The central issue on appeal was whether the trial judge erred in his charge to the jury by failing to instruct them that the defendant bears the onus of proving the plaintiff failed to mitigate her damages.

The Divisional Court found that the omission was a significant error on a critical legal issue that left the jury with a misapprehension of the applicable legal principles.

Concluding that the error caused a substantial wrong or miscarriage of justice, the Court allowed the appeal and ordered a new trial on the issue of damages.

The defendant appealed a Master's order granting summary judgment to the plaintiff for the purchase price of a fiber optic measurement machine.

The defendant argued the machine was defective and that the Master erred in finding no genuine issue for trial.

The Divisional Court reviewed the conflicting jurisprudence on the standard of review for a Master's final discretionary order, concluding the standard is correctness.

Applying this standard, the court upheld the Master's decision, finding the defendant had retained the machine for over a year without rejecting it, thereby accepting it under the Sale of Goods Act.

Following the dismissal of an appeal regarding a summary judgment motion, the parties made written submissions on costs.

The respondents sought costs on a partial and substantial indemnity basis, while the appellant argued costs should be in the cause due to the unique circumstances and ongoing litigation in Kuwait.

The Divisional Court agreed with the motions judge that the costs claimed were excessive and ordered that the costs of the leave to appeal motion and the appeal be fixed and payable in the cause.

The appellants appealed an order vacating their construction lien and dismissing their action for failing to set the matter down for trial within the two-year limitation period under section 37(1) of the Construction Lien Act.

The appellants argued it was impossible to set the action down because the fundamental issue of whether the work was lienable was under reserve by the Divisional Court at the time the limitation period expired.

The Divisional Court dismissed the appeal, finding that there was no practical or legal impossibility preventing the appellants from complying with the strict statutory requirements.

The respondents in an application for judicial review brought a motion to compel the applicant's affiants to re-attend cross-examinations to answer questions regarding their personal financial positions.

The applicant employer had sought judicial review of an Employment Standards Officer's order to pay wages, claiming impecuniosity to avoid the statutory requirement to pay the order amount into trust.

The court ordered the affiants to answer the questions so the judicial review panel would have a complete record to determine relevance.

The court also ordered the applicant to serve the affected employees with the notice of application.

The moving party, a co-operative housing provider, sought to quash the respondent's appeal or lift a stay of enforcement of a writ of possession.

The respondent had been ordered evicted due to threats and disturbances, and her previous appeals and applications for judicial review had been dismissed.

She sought a stay pending a human rights complaint.

The court found the appeal to be without merit, constituting a collateral attack and an abuse of process, and noted that leave to appeal the interlocutory order had not been sought.

The appeal was quashed and the writ of possession was ordered to be enforced.

Following a successful appeal that certified the action as a class proceeding, the parties were unable to agree on costs.

The appellants sought $186,293.81 on a partial indemnity basis, while the respondent suggested a range of $30,000 to $60,000.

Applying the principles of fairness and reasonableness, and considering awards in similar actions, the Divisional Court fixed the appellants' costs at $60,000 plus disbursements and GST, payable if the plaintiffs are successful in the pending appeal before the Court of Appeal.

Following a successful appeal regarding the administration of a pension plan, the appellants sought costs for both the Tribunal hearing and the appeals.

The Divisional Court awarded the appellants partial indemnity costs payable by the respondent employer.

Furthermore, recognizing that the appellants brought the proceedings to compel the due administration of the pension fund for the benefit of all members, the Court ordered that the difference between the fixed partial indemnity costs and their full solicitor-and-client costs be paid out of the pension trust fund.

Following an unsuccessful application for judicial review regarding mill closures, the applicants argued that no costs should be awarded due to the public interest nature of the litigation.

The court rejected this argument, noting the applicants had a personal and pecuniary interest in the outcome.

The court awarded costs to the successful respondents, fixing the Ministry's costs at $22,368.68 and reducing Domtar's claimed costs to $12,000 to account for duplication of work among the respondents.

Following an appeal, the parties were unable to agree on costs and provided written submissions.

The successful respondent sought over $50,000 in costs.

Applying the principles of fairness and reasonableness, the court fixed the respondent's costs for the application for leave to appeal at $2,000 and for the appeal at $15,000, plus disbursements of $1,439.36.

The plaintiff was charged with the second-degree murder of her daughter based on an autopsy report by the defendant forensic pathologist, which concluded the cause of death was multiple stab wounds.

After a second autopsy revealed the wounds were likely caused by dog bites, the charges were withdrawn.

The plaintiff sued the pathologist for negligence, bad faith, and misfeasance in public office.

The pathologist appealed a motion judge's refusal to strike the claim.

The Divisional Court allowed the appeal, holding that the witness immunity rule applied to the pathologist's autopsy report and testimony at the preliminary inquiry, rendering him immune from civil suit.

Following the dismissal of their appeals regarding construction lien rights, the appellants and respondents made written submissions on costs.

The Divisional Court fixed the respondent Rumble's costs at $20,515.72 on a partial indemnity basis, payable by Cassidy and R & A. The court found the respondent Dana's claim for $41,024.52 excessive given the lack of novel arguments on appeal, and fixed Dana's costs at $15,800.00, payable by Kennedy.

The appellants appealed a Small Claims Court decision awarding the respondent damages for mental distress and legal costs following the appellants' breach of a real estate purchase agreement.

The Divisional Court allowed the appeal, finding that damages for mental distress were not pleaded and are generally unavailable for breach of a real estate contract.

The court also set aside the award for legal costs incurred in contemplation of litigation.

However, the court held that the respondent was entitled to forfeiture of the $5,000 deposit paid by the appellants, even though actual damages were less than the deposit amount.

The appellant law firm appealed a Small Claims Court judgment ordering it to pay $6,000 to the respondent, a former client.

The dispute centered on whether $6,000 from the respondent's settlement funds was properly retained by the appellant to pay her husband's outstanding legal accounts, or whether a subsequent $25,000 payment by the husband was an all-inclusive settlement of his debts.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's reliance on the credible testimony of the husband's new counsel regarding the all-inclusive nature of the $25,000 settlement.

The plaintiff, Tarion Warranty Corporation, brought a motion for leave to appeal a decision that denied its motion to strike the defendants' pleadings under Rule 21.01(1)(b).

The court found that Tarion had chosen to enter into a contractual relationship with the guarantors, exposing itself to contractual remedies.

Applying the high threshold for striking pleadings, the court found no good reason to doubt the correctness of the motion judge's reluctance to strike the claim at this stage.

The motion for leave to appeal was denied.

The appellants appealed a Master's decision granting summary judgment to the third-party insurer, striking the appellants' third-party claim.

The Master concluded that the plaintiff's claim against the appellants fell outside the insuring agreement because the appellants were acting as a general contractor rather than a building material wholesaler, and the damages did not result from an accident.

The Divisional Court dismissed the appeal, finding that the allegations clearly related to the appellants' activities as a contractor and that foundation settlement due to inadequate soil conditions could not reasonably be characterized as an accident.

The respondents brought a motion for security for costs of the trial and the anticipated appeal.

The court applied the two-part test under Rule 61.06(1) of the Rules of Civil Procedure.

The court found good reason to believe the appeal was frivolous and vexatious, noting the trial judge's extensive findings of fact.

The court also found the corporate appellant had insufficient assets in Ontario to pay the costs, given outstanding judgments and lien claims against it.

The motion was granted, and the appellant's appeal was stayed pending the posting of security for costs.

The plaintiff subcontractor sued the defendant contractor in Small Claims Court for unpaid invoices.

During closing arguments, the trial judge raised the issue of a trust claim under the Construction Lien Act, which had not been pleaded.

The trial judge found the defendant liable for breach of trust.

On appeal, the Divisional Court held that while the Small Claims Court has jurisdiction to hear trust claims within its monetary limits, it was unfair to the defendant to grant judgment on an unpleaded trust claim, as it deprived him of the opportunity to adduce evidence to discharge his burden as trustee.

The appeal was allowed and a new trial ordered.