Civil Litigation - Defendant - ODC

The plaintiff appealed a decision upholding a Master's refusal to strike an affidavit.

During cross-examination on the affidavit, the witness's counsel adjourned the examination so the witness could consult with another lawyer.

When cross-examination resumed, the witness refused to answer questions about the consultation, claiming solicitor-client privilege.

The Divisional Court held that the Master erred by placing the onus on the plaintiff to prove interference with the witness's evidence without requiring the defendants to elect whether to waive privilege or withdraw the evidence.

The appeal was allowed, the decisions below set aside, and the matter remitted to the Master.

The appellant Township appealed a decision setting aside a master's order that required the respondent to deliver a further and better affidavit of documents.

The master's order was based on admissions made by the respondent in response to a request to admit regarding the existence of documents proving damages.

The Divisional Court dismissed the appeal, holding that using a request to admit to force a party to state whether it has documents evidencing damages is improper and a nullity.

Consequently, the respondent's admissions were also a nullity, and the appeal judge did not err in setting aside the master's order.

The applicants, Shoppers Drug Mart Inc. and Katz Group Canada Inc., sought costs after being wholly successful in their judicial review applications against the Minister of Health and Long-Term Care.

The respondents argued the claimed costs were excessive and duplicative.

The Divisional Court rejected the duplication argument, noting the complexity and importance of the first-instance proceeding.

The court awarded Katz Group its full claimed costs, but reduced Shoppers Drug Mart's fee claim from $104,354 to $80,000 due to excessive hours and duplication among its legal team.

The appellant appealed a Master's decision dismissing his motion to amend his statement of claim to add two third parties as defendants.

The appellant suffered a spinal injury in a swimming pool accident when he was a minor.

The court considered the transitional provisions and discoverability rules under the Limitations Act, 2002.

The court upheld the Master's finding that the appellant did not actually discover his claim against the specific third parties prior to January 1, 2004.

Furthermore, the court held that a minor without a litigation guardian cannot be deemed to have discovered a claim under s. 5(1)(b), as minors are presumed not to know their rights.

The appeal was dismissed.

The appellant objected to the involvement of the respondent's counsel, alleging a conflict of interest, and sought to have counsel removed.

The Divisional Court declined to make the order, noting that the objection was raised late, the lower court had already found no conflict, the quantum in issue was very small, and requiring the respondent to retain new counsel would cause undue delay and expense.

The respondent sought costs following the dismissal of the appellant's motion to set aside a registrar's order dismissing the appeal for delay.

The court declined to award costs for the underlying Small Claims Court action, as the respondent had prior opportunities to seek them.

Applying the principle of proportionality, the court reduced the respondent's claimed hours and fixed costs of the motion at $1,900 inclusive of HST.

The plaintiff brought a motion seeking leave to appeal a costs order of $39,000 awarded to the defendant following a successful summary judgment motion.

The plaintiff argued the costs award was unreasonable and approximated substantial indemnity.

The Divisional Court dismissed the motion, finding no error in principle and emphasizing that leave to appeal costs orders should be granted sparingly and deference must be accorded to the motion judge's discretion.

Following an appeal, the successful self-represented appellant sought costs for disbursements, including transcripts and copying exhibits.

The respondent failed to file costs submissions.

The Divisional Court fixed costs at $2,500 all-inclusive, payable upon the settlement of all claims or the conclusion of the trial.

The moving party, Dr. Sazant, sought an extension of time to bring a motion under s. 21(5) of the Courts of Justice Act to challenge an order of a single judge.

The Divisional Court dismissed the motion, finding that the moving party failed to provide a reasonable explanation for the delay and that the delay prejudiced the respondents.

The court emphasized that resort to s. 21(5) should not become routine and that the justice of the case did not require granting the extension.

Two organizations, Conservation Ontario and the Ontario Association of Chiefs of Police (OACP), brought motions for leave to intervene in a judicial review concerning the interpretation of the workplace injury reporting requirements under s. 51(1) of the Occupational Health and Safety Act.

The court granted intervenor status to Conservation Ontario, finding it could provide a broader context regarding the operation of recreational facilities without expanding the record.

The court dismissed the OACP's motion, as it sought to introduce new issues and factual assertions that were not before the original decision-maker.

The defendants brought a motion to extend the time to file a notice of appeal from a judgment in a construction lien case.

The defendants' Manitoba counsel missed the 15-day appeal period prescribed by the Construction Lien Act, mistakenly believing they had 30 days from the entry of the formal order.

The court granted the extension, finding that the defendants had formed an intention to appeal within the relevant period, the delay was reasonably explained by counsel's error, and the plaintiff would not suffer prejudice that could not be compensated by costs and interest.

The appellant sought leave to appeal two interlocutory orders that adjourned her motion to discontinue a civil action sine die pending a jurisdictional determination by the Ontario Human Rights Tribunal.

The Divisional Court heard the motion for leave and found that the appellant failed to satisfy the test under Rule 62.02(4) of the Rules of Civil Procedure.

There was no conflicting decision on a legal principle, and no reason to doubt the correctness of the procedural order, which did not raise an issue of importance.

The motion for leave to appeal was dismissed with costs.

The appellant appealed a Small Claims Court decision awarding damages to the respondent for a hydro pole destroyed by the appellant's pickup truck.

The trial judge found the appellant liable under s 193 of the Highway Traffic Act because she failed to meet the onus of proving the damage was not caused by her negligence or improper conduct, despite finding she was not driving.

The Divisional Court allowed the appeal, finding the trial judge made a palpable and overriding error by rejecting the appellant's evidence that she did not consent to anyone driving her truck without giving good reasons.

The plaintiff sued for damages after a crane it purchased was destroyed in a fire.

The plaintiff mistakenly named the Canadian distributor instead of the Austrian manufacturer.

After the limitation period expired, the plaintiff successfully moved before a Master to correct the misnomer and substitute the manufacturer as a defendant.

The manufacturer and the Canadian distributor appealed the Master's order.

The Divisional Court dismissed the appeal, finding it was reasonably open to the Master to conclude that the 'litigating finger' pointed at the manufacturer and that there was no prejudice in allowing the correction.

The appellant financed repairs to the respondent's leased vehicle and registered a lien under the Repair and Storage Liens Act.

When the respondent defaulted, the appellant seized the vehicle.

The Small Claims Court ordered the vehicle returned with damages, finding the seizure was not commercially reasonable under the Personal Property Security Act.

On appeal, the Divisional Court set aside the trial judgment, holding that the trial judge applied the wrong statute, misinterpreted the contract, and awarded inappropriate damages without a solid evidentiary basis.

The appellant was granted liberty to sell the vehicle.

The appellant appealed a summary judgment dismissing his medical malpractice claim against a hospital and two doctors for failing to diagnose a concussion.

The motions judge had dismissed the action under Rule 20 of the Rules of Civil Procedure.

The appellant argued that Rule 20 does not apply in Small Claims Court, relying on recent appellate jurisprudence.

The Divisional Court agreed that Rule 12.02 of the Small Claims Court Rules was the correct provision, but upheld the dismissal because the appellant had no expert evidence on the standard of care and the claim had no meaningful chance of success, rendering it a waste of time.

The moving party sought to introduce fresh evidence of events that occurred after the tribunal's decision on an appeal.

The Divisional Court dismissed the motion, holding that the appeal must be based on the record before the tribunal and that post-hearing conduct is a matter for the tribunal.

The court found this was not a rare case where post-hearing evidence must be admitted to prevent an obvious and substantial injustice.

The moving party brought a motion under s. 21(5) of the Courts of Justice Act to vary an order refusing leave to appeal a decision of the Ontario Municipal Board.

The Board had dismissed an appeal regarding minor variances.

The Divisional Court dismissed the motion, finding that the motions judge applied the correct test and did not decline jurisdiction.

The court awarded costs to the respondent but declined to order substantial indemnity costs despite the moving party's unfounded allegations of false evidence.

The plaintiff brought motions for leave to appeal two interlocutory orders that dismissed a motion to continue an ex parte Anton Piller order and dismissed subsequent motions for relief under Rules 30 and 45.

The Divisional Court dismissed the motions for leave to appeal, finding that the motion judge properly considered the matter de novo and correctly concluded that the plaintiff failed to establish a strong prima facie case to justify continuing the intrusive order.

The court found no reason to doubt the correctness of the orders and no denial of natural justice.

The appellants appealed the imposition of two conditions on an order for the partition and sale of a commercial property, while the respondents cross-appealed seeking to reverse the order for sale.

The Divisional Court upheld the finding of co-ownership but set aside the condition requiring the prior payment of $1 million, finding that conflicting evidence regarding payment required a trial.

The court held that the sale could not proceed until the issues of payment and alleged oppression were resolved at trial.

Both the appeal and cross-appeal were allowed in part.