Civil Litigation - Defendant - ODC

The court issued an amendment to its original judgment released on July 28, 2011, to correct an error regarding the place where the appeal was heard.

The original judgment incorrectly stated the appeal was heard in London, and was amended to reflect that it was heard in Hamilton.

The moving party sought leave to appeal to the Divisional Court from a motions judge's dismissal of an ex parte motion for a Certificate of Pending Litigation.

The moving party argued the motions judge erred in finding no fraudulent conveyance and requiring an interest in land.

The court dismissed the motion for leave to appeal, finding that because the underlying decision was ex parte, conclusory, and contrary to established law, it had no precedential value and granting leave would serve no public interest.

The defendant brought a motion for leave to appeal an order granting the plaintiff leave to amend her Statement of Claim to add a new cause of action.

The defendant argued the new claim was time-barred and relied on Rule 62.02(4), asserting the motion judge's decision conflicted with other cases on discoverability under the Limitations Act.

The Divisional Court dismissed the motion, holding that a failure to apply established principles does not constitute a conflicting decision requiring resolution under the Rule.

The employer appealed a summary judgment awarding the plaintiff damages based on a six-month notice period for wrongful dismissal.

The Divisional Court upheld the summary judgment, finding no material facts in dispute regarding the notice period or mitigation efforts.

However, the court reduced the damages by $2,800 due to a calculation error regarding benefits.

The court also granted leave to appeal costs and increased the plaintiff's costs award to $18,000, finding the motion judge erred by failing to apply the cost consequences of Rule 49 after the plaintiff made a favourable offer to settle.

Following the dismissal of the moving party's motions for leave to appeal and for a stay, the successful responding parties sought their costs on a partial indemnity basis.

The moving party failed to provide any costs submissions.

The court considered the principle of proportionality and the moving party's conduct which thwarted the bankruptcy trustee's mandate.

Costs were fixed at $20,000 for the trustee and $7,323.41 for the applicants, payable by the moving party.

The appellants appealed a trial judgment finding them liable for oppressive conduct in a joint venture for property development.

The trial judge found the appellants had extracted equity from the properties through unauthorized mortgages and transferred the proceeds to their own companies, ordering an accounting and substantial indemnity costs.

The Divisional Court dismissed the appeal, finding no error in the trial judge's valuation, cost calculations, or costs award, noting the appellants' conduct was reprehensible.

The respondents' cross-appeal regarding an erroneous deduction from their capital allocation was allowed.

The plaintiff, having been successful on an appeal from a Master's decision, sought costs of the appeal on a substantial or full indemnity scale, arguing the appeal was spurious.

The court found no basis for an elevated scale of costs, noting the defendants had a right to appeal and the single legal issue was not complex.

Costs were fixed at $4,500 on a partial indemnity scale, having regard to the principle of proportionality.

During an appeal, an added party sought to raise a Charter challenge to provisions of the Municipal Elections Act.

The Divisional Court declined to hear the constitutional question, noting that the evidentiary record was woefully inadequate.

Furthermore, the order adding the party explicitly stated that it was not to unduly widen the scope of the appeal.

The court held that a Charter application could be brought at any time on a proper record, but it would not be heard in the current appeal nor referred back to the motions judge.

The plaintiffs brought a motion for partial summary judgment for rent arrears and unpaid utility accounts under a commercial lease, and to dismiss the defendant's counterclaim for conversion of chattels.

The court granted partial summary judgment for the rent and utilities, finding no genuine issue for trial as the defendant failed to address these claims in its materials.

However, the court refused to dismiss the counterclaim, finding it raised a triable issue.

The court stayed the execution of the summary judgment pending the counterclaim, on the condition that the defendant pay the judgment amount into court.

The moving party sought costs of her successful motion to intervene as a party in an appeal.

The respondent argued that no costs should be awarded or that costs should be determined by the panel hearing the appeal, alleging that the moving party violated the scope of the permitted intervention by filing prohibited evidence.

The court ordered that the costs of the motion to intervene be determined by the panel hearing the appeal, as they were best positioned to assess compliance with the intervention conditions.

The representative plaintiff in a certified class action sought leave to appeal a motions judge's decision dismissing a motion for enhanced notice to class members.

The settlement agreement, which capped the settlement fund at $2.25 million with the residue reverting to the defendants, had been approved by the court.

Due to a low take-up rate, the plaintiff sought to modify the notice provisions.

The motions judge held that the court could not modify a concluded and court-approved settlement agreement without the defendants' consent.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision.

The representative plaintiffs in a class action against a private school sought leave to appeal a motions judge's decision permitting the defendants to bring third party claims against the parents of the students, who were members of the certified class.

The plaintiffs argued that because they intended to limit their claims to the several liability of the defendants, third party claims for contribution and indemnity were legally barred, relying on the Court of Appeal's decision in Taylor.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision and noting the issue's importance to access to justice.

During an appeal regarding a municipal election, the intervenor/appellant sought to introduce affidavit material detailing after-the-fact efforts to determine voter eligibility through canvassing and signed forms.

The Divisional Court ruled the evidence inadmissible, citing concerns over its hearsay nature and lack of reliability based on how it was compiled.

Consequently, the responding affidavit material was also excluded.

The appellant was successful in an appeal from a Small Claims Court decision and sought costs of $17,185.79 on a substantial indemnity basis.

The court found no basis for substantial indemnity costs as there was no relevant offer to settle.

Applying the factors in Rule 57 of the Rules of Civil Procedure, including the amount at issue ($10,000) and the reasonable expectations of the unsuccessful party, the court found the requested amount unreasonable.

Costs were fixed at $5,000 all-inclusive.

The moving party's motion for leave to appeal an interlocutory order was dismissed from the bench.

The court subsequently received written submissions on costs from the successful responding party.

The court awarded the responding party costs of the motion on a partial indemnity basis, fixed at $500.

Three parties brought motions to intervene in appeals from a judgment declaring two municipal elections invalid.

The successful candidate in one ward sought to be added as a party, a voter whose vote was discounted sought to intervene as a friend of the court, and a neighbouring municipality sought to intervene as a friend of the court.

The court granted all three motions, finding that the successful candidate had a direct interest, the voter offered a unique perspective on the voting process, and the neighbouring municipality could provide useful context on the impact of the lower court's decision on municipal elections generally.

The moving parties sought leave to appeal an order imposing conditions on access to audio tapes and a two-week notice period for further motions.

The Divisional Court dismissed the motion, noting that the condition regarding access to the tapes had already been complied with and the notice period was a procedural matter within the motions judge's discretion.

No costs were ordered.

The appellant insurance company appealed a decision dismissing its motion to set aside a default judgment obtained by the respondent homeowners.

The respondents had sued for damages following unsatisfactory home repairs after a flood.

The appellant failed to file a statement of defence despite multiple extensions, and delayed several months before moving to set aside the default judgment.

The Divisional Court found that while the motions judge erred in concluding there was no arguable defence on the merits, she correctly found the appellant failed to explain the default or move promptly.

Weighing all factors, the court exercised its discretion to dismiss the appeal, finding the justice of the case required denying relief due to the appellant's unexplained delay.

The plaintiff bank moved for leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment against a corporate debtor and personal guarantors.

The court found good reason to doubt the correctness of the motion judge's order, as the bank had an irrefutable claim for partial summary judgment.

However, the court dismissed the motion for leave to appeal because the issue was not of general importance, holding that an allegedly incorrect application of Rule 20 does not automatically create a matter of general importance warranting an appeal.

The appellant appealed a Small Claims Court judgment ordering him to repay student loans to the respondent bank.

The central issue was whether the loans were ordinary bank loans subject to a two-year limitation period, or government student loans exempt from limitation periods under the Limitations Act, 2002.

The Divisional Court found the trial judge erred in concluding the loans were made under the Canada Student Loans Act, as that statute had been replaced by the Canada Student Financial Assistance Act at the relevant time.

Given the insufficient evidentiary record regarding the exact nature of the loans, the court allowed the appeal in part and ordered a new trial.