Civil Litigation - Defendant - ODC

Following a successful appeal regarding the interpretation of 'fee simple, if unencumbered' for property assessment purposes, the appellants (Municipal Property Assessment Corporation and the City of Toronto) sought costs on a partial indemnity basis.

The respondents argued the claimed fees were excessive and that the appellants should have coordinated their submissions.

The court found the issues complex, the amounts at stake substantial, and no unnecessary overlap in arguments.

Applying Rule 57.01(1) of the Rules of Civil Procedure, the court fixed costs at $70,500 for fees and counsel fees for each appellant, plus their respective disbursements.

The appellant appealed the dismissal of its motion under Rule 45.02 for an order preserving a sum of money held as cash collateral.

The appellant argued that its obligations under a Letter of Credit Agreement were discharged because the respondent entered into a forbearance agreement with the principal borrower, materially altering the guaranteed loan.

The Divisional Court dismissed the appeal, finding that the agreement was for a standby letter of credit, not a guarantee, and thus the law of guarantees did not apply.

Furthermore, the cash collateral was not a specific fund to which the appellant had a proprietary claim, and the appellant had implicitly ratified the forbearance agreement by participating in the borrower's insolvency proceedings without objection.

The College of Physicians and Surgeons of Ontario brought a motion to dismiss Dr. Deep's appeal for failing to comply with a previous order requiring him to post $20,000 as security for costs.

Dr. Deep had also failed to pay a $3,000 costs award and had not perfected a motion to set aside the orders, opting instead to commence a collateral action.

The court found that the collateral action was not a proper basis to defer the motion and rejected Dr. Deep's jurisdictional arguments.

The court granted Dr. Deep one final, limited opportunity to post the security for costs by a specified date, failing which the appeal would be dismissed by the Registrar without notice.

The defendant sought an extension of time to appeal a Small Claims Court order that set aside a default judgment on the condition that he pay $5,000 into court.

The plaintiff had obtained the default judgment in 2007, and the defendant only moved to set it aside after being arrested for contempt for failing to attend judgment debtor examinations.

The Divisional Court dismissed the motion for an extension of time, finding that the defendant failed to demonstrate a continuing intention to appeal, his conduct showed a pattern of delay prejudicing the plaintiff, and he failed to articulate any error by the deputy judge.

The applicant sought leave to appeal from a decision of the Ontario Municipal Board (OMB) which concluded that it did not have jurisdiction to order a consolidated hearing under s. 25(2) of the Consolidated Hearings Act.

The court found that the prerequisites for leave were met, as the correctness of the OMB's decision was open to serious debate and the matter was of sufficient importance.

Leave to appeal was granted and the appeals were ordered to be consolidated with an existing appeal.

The defendant brought a motion for leave to appeal a decision dismissing its appeal from a Master's order.

The Master had struck a summons issued by the defendant to examine the plaintiff as a witness on a motion to strike the defendant's counterclaim for defamation.

The Divisional Court dismissed the motion for leave to appeal, confirming that under Rule 21.01(1)(b) of the Rules of Civil Procedure, no evidence is admissible on a motion to strike a pleading for disclosing no reasonable cause of action.

The defendant employer brought a motion for leave to appeal a partial summary judgment order that refused to dismiss the plaintiff employee's breach of contract claim.

The defendant argued the claim was barred by the Limitations Act, 2002, and that the motion judge erred in finding a triable issue regarding when the claim was discovered.

The Divisional Court dismissed the motion for leave to appeal, finding that the motion judge's decision was entirely fact-based and did not involve matters of such importance that leave should be granted under Rule 62.02(4).

The defendants sought leave to appeal a decision dismissing their motion to stay the plaintiff's action for lack of jurisdiction.

The plaintiff, a former employee and member of the union, sued for wrongful expulsion and breach of a settlement agreement after the union terminated his membership benefits.

The defendants argued the plaintiff was required to exhaust internal union procedures before suing.

The Divisional Court denied leave to appeal, finding the motions judge correctly applied the law regarding exceptions to the exhaustion rule and that the proposed appeal raised no issues of general importance.

The defendants sought leave to appeal a decision dismissing their Rule 21 motion to strike the plaintiffs' claim for negligent investigation against the Special Investigations Unit (SIU).

The plaintiffs, family members of a youth killed in a police shooting, alleged the SIU's inadequate investigation compromised their participation in an inquest and civil action.

The court granted leave to appeal, finding conflicting jurisprudence on whether police or the SIU owe a private law duty of care to victims' families, and noting the issue is of general importance to the development of the law.

The appellant landlord appealed a Small Claims Court decision dismissing its claim for unauthorized parking fees, bailiff charges, and legal fees against the respondent tenants.

The trial judge found that the vehicles were not in the possession or control of the tenants and that the landlord acted precipitously in calling a bailiff.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the facts.

The plaintiffs commenced an action for damages arising from destroyed cargo within the two-year limitation period under the Warsaw Convention, but failed to serve the statement of claim on the defendant airline within the time required by the Rules of Civil Procedure.

The defendant appealed a master's order extending the time for service, arguing that the action was not 'brought' within the meaning of Article 29 of the Convention because it was not served within two years.

The Divisional Court dismissed the appeal, holding that 'brought' means initiating the legal proceeding, not initiating and serving it, and that Ontario procedural rules govern the extension of time for service.

The appellant appealed a Small Claims Court decision ordering her to pay unpaid dance school fees to the respondent.

She argued the trial judge erred in calculating the debt and in dismissing her counterclaims for breach of contract, breach of fiduciary duty, and general damages.

The Divisional Court upheld most of the trial judge's findings, finding no palpable and overriding error.

However, the court found the trial judge erred in his analysis of a hair-braiding agreement between the parties, concluding the contract was frustrated rather than unbreached.

The court allowed the appeal in part, granting the appellant a $1,200 set-off against the debt, but otherwise dismissed the appeal and awarded costs to the respondent.

The plaintiff, an elderly man, was severely beaten by individuals on a union picket line.

He sued the defendants in their personal capacity and, after the two-year limitation period expired, sought a Representation Order under Rule 12.07 to bind all union members.

The motions judge granted the order based on the common law 'special circumstances' doctrine.

However, subsequent Court of Appeal decisions eliminated this doctrine.

On appeal, the Divisional Court held that a Representation Order effectively adds new parties to the action.

Consequently, the expiration of the limitation period was fatal to the application, and the appeal was allowed.

The applicants brought an application and cross-application to strike a 1991 consent order from the parcel register of their lands.

The consent order purported to create a restrictive covenant preventing the storage of derelict vehicles and materials, binding the original defendants and their successors in title.

The court held that the original consent order was invalid because a court order cannot bind non-parties (successors in title) based solely on the agreement of the parties.

Furthermore, the restrictive covenant failed to adequately identify the dominant tenement.

The court also found that even if valid, the covenant should be discharged under s. 61 of the Conveyancing and Law of Property Act because a subsequent municipal property standards by-law rendered it redundant.

The order was struck from the register.

The Commissioner of the OPP sought to stay a disciplinary hearing pending an application for judicial review based on a reasonable apprehension of bias by the adjudicator.

A motion judge denied the stay, finding the Commissioner lacked standing and failed to meet the test for a stay.

On review, the Divisional Court set aside the motion judge's order, holding that the Commissioner has standing to seek judicial review on procedural fairness grounds and that the proper test for a stay was met, as irreparable harm would result from continuing a hearing tainted by an apprehension of bias.

The stay was granted and the respondents' cross-motion to quash the application was dismissed.

The appellant general contractor appealed a trial judgment awarding the respondent subcontractor damages for unpaid invoices.

The trial judge had dismissed the appellant's claims for set-off related to water damage caused by the respondent and a disputed administrative mark-up fee.

The Divisional Court allowed the appeal, finding the trial judge made palpable and overriding errors by misapprehending uncontradicted evidence that established the respondent's negligence caused the water damage, the quantum of the resulting back-charge, and the respondent's failure to perform the services required to earn the mark-up fee.

The trial judgment was set aside and the action dismissed.

The moving parties sought leave to appeal an interlocutory decision removing their law firm as solicitors of record due to a conflict of interest arising from the transfer of an associate.

The court dismissed the motion for leave to appeal, finding no conflicting decisions under rule 62.02(4)(a) regarding the failure to provide prompt notice of a conflict, and no good reason to doubt the correctness of the motions judge's decision under rule 62.02(4)(b).

The court affirmed that independent counsel should manage conflict issues and that the motions judge correctly applied the principles from McDonald Estate v. Martin.

Following the dissolution of the law firm representing the plaintiff in a proposed class proceeding, the plaintiff served a Notice of Change of Solicitors to appoint a new firm formed by some of the former partners.

The appellant, a firm formed by another former partner who had been the supervising lawyer, moved to set aside the Notice or replace the representative plaintiff.

The motion judge dismissed the motion, finding the plaintiff's choice of counsel was adequate.

The Divisional Court dismissed the appeal, holding that the motion judge made no error of law and his decision was reasonable.

The plaintiff sought leave to appeal an interlocutory order which found that the first page of a reporting letter written to the defendant was protected by solicitor-client privilege and that the privilege had not been waived.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision and noting that the issue of privilege waiver would be explored at an upcoming summary trial.

Costs were fixed at $2,500 in the cause.

The insured's vehicle was damaged when her daughter, experiencing an acute psychotic episode, drove it across three lanes of traffic and into a tree.

The insurer denied coverage, arguing the daughter's actions were intentional.

The trial judge found the loss was 'accidental' as the daughter lacked conscious control of the vehicle.

The Divisional Court dismissed the insurer's appeal, upholding the trial judge's finding and further noting that the innocent insured owner was entitled to coverage regardless, as the event was unexpected from her perspective.