Civil Litigation - Defendant - ODC

The court issued an endorsement regarding the costs of an appeal from the Small Claims Court.

The respondent/plaintiff was awarded costs fixed at $5,000 on a partial indemnity scale.

The court noted that while Rule 49.10 does not apply to appeals, the plaintiff's offer to settle for $6,000 before significant appeal costs were incurred was a very significant factor in determining the quantum of costs to protect the successful plaintiff from a Pyrrhic victory.

The respondents brought a motion to a panel of the Divisional Court to vary an order that refused to strike certain material from the applicant's application record.

The material in question referenced a 'without prejudice' settlement offer made during a tax dispute.

The Divisional Court granted the motion, finding that the motions judge erred in his application of the test for settlement privilege.

The court held that the communications met the three-part test for settlement privilege and that the applicant failed to demonstrate a compelling or overriding interest of justice to justify an exception to the privilege.

The moving party municipality sought leave to appeal a motion judge's dismissal of its motions for summary judgment and determination of a question of law.

The underlying action involved claims of misfeasance and negligence related to the closing of zoning applications.

The Divisional Court granted leave to appeal on the issue of whether the municipality was immune from suit under s. 20(1)(a) of the Oak Ridges Moraine Conservation Act, finding there was good reason to doubt the correctness of the motion judge's decision and that the issue was of general importance.

Leave to appeal on the limitation period issue was denied.

Following the dismissal of the appellants' appeal, the successful respondents sought costs of $31,804.58.

The appellants submitted that costs should be fixed at $20,000.

The Divisional Court agreed with the appellants, fixing costs at $20,000 inclusive, noting that this amount was fair, reasonable, and proportionate to the amount at issue.

The appellant appealed an order of the Master refusing to re-open a final judgment of foreclosure granted three years earlier.

The foreclosure judgment had been granted on consent, and the mortgagee had elected not to request a reference.

The Divisional Court dismissed the appeal, finding no error in the Master's consideration of the consent nature of the judgment, the delay, and the prejudice to the respondents.

The appellant successfully defended a claim for trespass and damage to property at trial, but the trial judge dismissed the claim without costs and without giving the appellant an opportunity to make costs submissions.

On appeal, the Divisional Court held that while a trial judge has discretion to refuse costs, procedural fairness requires hearing submissions first.

The court considered the matter afresh and awarded the appellant costs of the trial on a partial indemnity scale, as well as $7,000 for the appeal.

The 86-year-old appellant appealed a Master's order refusing to set aside a noting in default in an action for specific performance of a real estate transaction.

The appellant had entered into an unsolicited agreement to sell her home but immediately retained counsel to contest its validity.

Due to her counsel's inadvertence, a statement of defence was not filed.

The respondent's counsel noted her in default without warning, waiting six months to notify her counsel.

The Divisional Court allowed the appeal, finding the Master made palpable and overriding errors by ignoring the overriding principle of resolving disputes on their merits and by failing to consider the sharp practice of the respondent's counsel.

The Air France defendants sought leave to appeal a motion judge's decision to re-open a jurisdiction motion to allow fresh evidence regarding the application of the Montreal Convention.

The underlying action arose from an Air France runway overrun at Toronto Pearson International Airport.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting case law and no reason to doubt the correctness of the motion judge's discretionary decision to re-open the matter to determine the applicable international convention.

The plaintiffs' cross-motion for leave to appeal a costs award was also dismissed.

The defendants sought leave to appeal an order certifying the action as a class proceeding regarding allegedly defective heart devices.

The defendants argued the motions judge misconstrued the 'some basis in fact' standard and that the class definition was overly inclusive.

The Divisional Court denied leave to appeal, finding the motions judge correctly applied the evidentiary principles from Hollick v. Toronto and made factual findings entitled to deference.

The motion was dismissed with costs fixed at $15,000.

The self-represented defendant brought a motion for leave to appeal a procedural order that referred the matter to a case management master and adjourned the plaintiff's motion for summary judgment.

The defendant argued the referral constituted an unjust bifurcation of proceedings.

The Divisional Court dismissed the motion, finding no conflicting decisions, no reason to doubt the correctness of the discretionary order, and no issues of public importance under Rule 62.02(4) of the Rules of Civil Procedure.

The appellants sued their former solicitor for negligence after discovering a merged title issue under the Planning Act prior to closing a real estate transaction.

The solicitor offered to correct the issue at his own expense via a nunc pro tunc application, but the appellants' new lawyer secretly pursued a parallel severance application and sought to recover those costs.

The trial judge found the solicitor negligent but held the costs of the parallel application were not reasonably foreseeable.

The trial judge also awarded costs against the appellants for failing to accept settlement offers that exceeded their trial recovery.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's foreseeability analysis or costs award.

The appellant appealed a Small Claims Court order striking his claim for assault and Charter breaches against customs officials.

The deputy judge had struck the claim on the basis that there was no medical evidence of injuries and the officers acted reasonably.

The appellate court allowed the appeal, finding that the deputy judge erred by applying the test for summary judgment rather than the test for a motion to strike.

The court held that credibility issues and the assessment of evidence must be left for trial, and reinstated the claim with leave to amend.

The appellant's vehicle was involved in a collision and towed to the respondent's facility at the appellant's request.

The respondent paid the towing company and charged the appellant for towing and storage.

The appellant refused to pay, arguing the fees were excessive and violated the Consumer Protection Act, 2002.

The Small Claims Court awarded the respondent $1,298.50 based on quantum meruit.

On appeal, the Divisional Court upheld the decision, finding that the Consumer Protection Act did not apply because the respondent was not a 'repairer' and the services arose from an emergency.

The court found no palpable and overriding error in the trial judge's conclusion that the fees were reasonable and an agency relationship existed.

The defendants appealed a Master's decision refusing to grant leave to defend under s. 54(3) of the Construction Lien Act.

The defendants' statement of defence had previously been struck for failing to comply with a court order regarding undertakings, a decision upheld on appeal.

The Divisional Court dismissed the appeal, holding that s. 54(3) applies only to a default in the delivery of pleadings, not where pleadings have been delivered and subsequently struck.

The court further noted that even if the section applied, the court retains discretion to refuse leave where the motion constitutes a collateral attack and an abuse of process.

The moving parties sought leave to appeal an order removing their counsel due to an appearance of impropriety and prohibiting them from retaining another specific counsel.

The court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's conclusion that the appearance of impropriety required the protection of public confidence in the administration of justice.

Costs were awarded to the respondent trustees on a partial indemnity scale.

The defendants moved for leave to appeal a decision dismissing their motion to strike the plaintiff's statement of claim.

The plaintiff alleged inducing breach of contract and intentional interference with economic relations regarding an exclusive distribution agreement.

The Divisional Court found no reason to doubt the correctness of the motions judge's decision that the pleadings, read generously, disclosed a reasonable cause of action.

The motion for leave to appeal was dismissed.

The individual defendants, who were architects and a contractor, sought leave to appeal a motions judge's decision refusing to grant summary judgment dismissing the claims against them personally.

The plaintiffs had sued the individuals despite the relevant contracts being with their respective corporations.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's application of the summary judgment test.

The court noted that the motions judge allowed the claims to proceed based on 'just barely some factual basis' rather than requiring a genuine issue for trial, and that the scope of personal liability for corporate directors and employees is a matter of public importance.

The self-represented moving party sought an extension of time and leave to appeal an interlocutory order that dismissed his appeal of a Master's case management decision.

The court granted the extension of time but dismissed the motion for leave to appeal.

The court found no error in the motions judge's decisions regarding costs, the requirement for the moving party to participate by videoconference, or proceeding in the moving party's absence when he chose not to attend.

The appellant appealed a trial judgment that granted the respondent $27,641.57 and dismissed the appellant's claim for constructive dismissal.

The Divisional Court found no error in the trial judge's placement of the onus on the appellant to prove constructive dismissal after the respondent proved he had resigned.

The court also found no palpable or overriding error in the trial judge's factual findings, including her rejection of the appellant's claim that he resigned due to unaddressed safety concerns.

The appeal was dismissed with costs.

The moving party, Mary Darkeff, brought an unopposed motion to set aside a Registrar's Order dismissing her appeal for delay and to extend the time for perfecting the appeal.

The court noted several deficiencies in the appeal materials, including the moving party's lack of authority to represent a corporate defendant and an unclear Notice of Appeal.

The court granted the motion conditionally, setting aside the dismissal and extending the time to perfect the appeal, provided the appellants correct the noted deficiencies within 30 days.