Civil Litigation - Defendant - ODC

The appellant appealed a summary judgment decision dismissing its claim for unpaid construction work as statute-barred.

The motions judge found that the invoice rendered by the appellant was a demand obligation under s. 5(3) of the Limitations Act, 2002, and that the limitation period commenced on the date the invoice was rendered, precluding the discoverability principle.

The Divisional Court majority upheld the decision, confirming that an invoice payable on demand is a demand obligation and time starts to run when the demand is made.

The appeal was dismissed.

The responding parties sought judicial review of a coroner's jury verdict and recommendations regarding a death following a chiropractic neck manipulation.

The application was commenced 10 months after the verdict and remained unperfected nearly seven years later.

The moving party coroner moved to dismiss the application for delay.

The court held that a single judge of the Divisional Court has jurisdiction to dismiss for delay in clear cases.

The court found the delay inordinate, rejected the explanation that the responding parties were waiting for complete transcripts of submissions made in the absence of the jury, and found significant prejudice to the deceased's family and the public interest.

The motion to dismiss for delay was granted.

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 plaintiffs moved for leave to appeal a decision refusing summary judgment in their favour regarding the ownership of shares in a Panama corporation.

The motion judge had concluded that a trial was necessary to determine whether the plaintiffs were entitled to 100% or 50% of the shares, as one of the plaintiffs had signed documents relinquishing 50% and the claim of duress lacked direct affidavit evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no error in the motion judge's conclusion that a trial was required and noting that the issue did not raise questions of general or public importance.

The appellants were entirely successful on their appeal and sought costs.

The court awarded the appellants costs fixed at $1,000 for the motion for leave to appeal and $4,500 for the appeal, noting that the outcome was more favourable than an offer to settle made to them by the respondents.

The court found it was unreasonable for the respondents to oppose the appeal given the lack of reasonable prospect of success.

The applicant sought to recognize and enforce two default judgments from a Florida court against the respondent for his role in a complex fraud scheme.

The respondent challenged the jurisdiction of the Florida court and raised defences of fraud and denial of natural justice.

The court found a real and substantial connection between the respondent and Florida, and rejected the defences.

However, because the respondent had a pending motion in Florida to set aside the judgments, the court recognized the judgments but stayed their enforcement in Ontario pending the outcome of the foreign motion.

The defendant brought a motion under s. 21(5) of the Courts of Justice Act to set aside a decision refusing leave to appeal.

The Divisional Court dismissed the motion because it was brought more than two years after the decision, well beyond the four-day limit in Rule 61.16(6), with no reasonable explanation for the delay.

Furthermore, the court noted that such a motion will only be granted if the motions judge declined jurisdiction, which did not occur in this case.

The appellant homeowner appealed a Small Claims Court judgment awarding the respondent painter $1,520 plus costs for unpaid work under an oral contract.

The appellant argued the trial judge erred in calculating the amount owed and in finding that the Consumer Protection Act did not apply to limit the price to the original estimate.

The Divisional Court found a minor mathematical error and reduced the judgment to $1,480, but upheld the trial judge's finding that the Consumer Protection Act did not apply to this type of construction contract.

The appeal was allowed in part to correct the calculation.

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.

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.

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.

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 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.

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.

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 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.