Civil Litigation - Defendant - ODC

The appellants appealed a decision denying certification of a proposed class proceeding against CIBC and CIBC World Markets for alleged misclassification of employees making them ineligible for overtime.

The Divisional Court dismissed the appeal, finding that despite an amended class definition, the issue of eligibility for overtime for Investment Advisors and Associate Investment Advisors required individual, case-by-case determinations regarding their managerial or supervisory functions.

The appellants failed to establish a basis in fact that the job functions were sufficiently similar to be resolved as a common issue.

The appellant law firm sought leave to appeal a cost order made against it personally under Rule 57.07.

The firm had been removed as counsel for the plaintiff due to a conflict of interest, as another lawyer in the firm was acting for the defendant hospital.

The motion judge found the firm failed to fully disclose the conflict to the plaintiff and maintained an untenable position, causing unnecessary costs.

The Divisional Court denied leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's order.

The defendant Ministry brought a motion for leave to appeal a decision upholding a Master's refusal to dismiss the plaintiff's action for delay at a status hearing.

The delay was largely attributed to the plaintiff's former solicitors.

The court found no conflicting decisions and no reason to doubt the correctness of the reviewing judge's decision, which properly applied the test for delay and deferred to the Master's exercise of discretion.

The motion for leave to appeal was dismissed.

The plaintiff sought leave to appeal an order dismissing a motion to stay the defendants' pre-discovery summary judgment motion.

The plaintiff argued the motion judge relied on a test that conflicted with other jurisprudence and that there was good reason to doubt the correctness of the decision.

The Divisional Court found no conflict in the case law, noting that different approaches to case management did not amount to conflicting legal tests.

The court also found no reason to doubt the correctness of the motion judge's decision, as the appropriateness of a summary judgment motion without discovery is case-specific.

Leave to appeal was denied.

The appellant's appeal was dismissed, and the parties made written submissions on costs.

The successful respondents sought costs of $5,050.00, relying on a written offer to settle for $500.00 which they bettered.

The appellant argued for partial indemnity costs and sought its own costs for a motion to extend time.

The court rejected the appellant's arguments, noting the appellant's own costs outline was over $13,500.00.

The court awarded the respondents their requested costs fixed at $5,050.00.

The moving party sought leave to appeal an order dismissing an appeal from a Master's decision requiring a non-party witness to answer questions on a refusals motion.

The underlying motion sought to hold the moving party liable for a judgment against dissolved corporations under the Business Corporations Act.

The court dismissed the motion for leave to appeal, finding that while there was some doubt about the relevance of certain questions, the moving party failed to demonstrate that the proposed appeal raised an issue of general importance transcending the interests of the parties.

The respondents brought a motion to dismiss the applicants' judicial review application for delay, or alternatively, to strike a recent amendment to the application.

The applicants had commenced the application to challenge regulations under the Payday Loans Act, 2008, but delayed advancing it while monitoring a related case and negotiating with government officials.

The court dismissed the motion, finding the applicants provided an adequate explanation for the delay and the respondents suffered no prejudice.

The court also allowed the amendment to stand, noting the broader public interest issues involved, and appointed a case management judge to prevent further delay.

The defendant appealed a jury verdict finding it 100% liable for a slip and fall that injured the 96-year-old plaintiff.

The appeal was dismissed by the Registrar for delay after the defendant failed to perfect it within the required timeframes.

The defendant brought a motion to set aside the dismissal.

The court dismissed the motion, finding that while the failure to perfect was inadvertent, the defendant had dragged its feet, the delay prejudiced the elderly plaintiff, and the defendant failed to demonstrate any merit to the appeal.

The defendants in a construction lien action moved to discharge the plaintiff's lien and dismiss the action after the plaintiff failed to attend two scheduled cross-examinations.

The Master found the abortive cross-examinations insufficient to discharge the lien, but nevertheless discharged the lien and dismissed the action on the basis that the proceeding would be procedurally difficult and expensive.

The plaintiff appealed.

The Divisional Court allowed the appeal, finding that the Master breached procedural fairness by deciding the motion on grounds not raised in the notice of motion, depriving the plaintiff of the opportunity to respond.

The Court also held that a motion to discharge a lien under s. 47(1) of the Construction Lien Act is analogous to a summary judgment motion and is inappropriate where there are disputed issues of fact.

The defendant insurer sought leave to appeal a motion judge's dismissal of its motion for summary judgment.

The underlying action involved the interpretation of family protection coverage under an Ontario policy where the at-fault driver was insured under a New Brunswick policy.

The Divisional Court denied leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's conclusion that a trial was necessary to fully appreciate the evidence and issues, particularly regarding the New Brunswick insurance policy and settlement approaches.

The moving parties, two of several defendants, sought leave to appeal an interlocutory injunction restraining them from using confidential information and competing with the plaintiff.

The motions judge had found a strong prima facie case that the former president breached his fiduciary duty and that the moving parties were impressed with the same duty.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision and no conflicting decision that would warrant granting leave.

The defendants, innovator pharmaceutical companies, sought leave to appeal a decision dismissing in part their motion to strike the plaintiff generic drug company's claims for unjust enrichment and damages under the Trade-marks Act.

The court granted leave to appeal regarding the unjust enrichment claim, finding that a recent conflicting decision raised serious doubts about its correctness and that the issue was of general importance.

However, the court denied leave to appeal regarding the Trade-marks Act claim, finding no conflicting decisions or reason to doubt the motion judge's correctness.

The plaintiffs appealed a decision denying certification of a proposed class proceeding against the manufacturers of the drug Seroquel, as well as the associated costs award.

The Divisional Court upheld the motion judge's finding that the pleadings failed to disclose a cause of action under s. 5(1)(a) of the Class Proceedings Act and that the plaintiffs failed to meet the evidentiary threshold for the remaining certification criteria.

The court also found no error in principle in the costs award, noting the motion judge properly exercised her discretion.

The appeal was dismissed with costs fixed at $30,000.

The appellant builder appealed a trial judgment ordering the return of the respondents' deposit and upgrade payments for a new home.

The trial judge found that the appellant's letter extending the closing date amounted to an anticipatory breach of the agreement of purchase and sale, which the respondents accepted, terminating the agreement.

On appeal, the appellant argued the trial judge erred by deciding the case on the unpleaded issue of anticipatory breach.

The Divisional Court dismissed the appeal, holding that the finding of repudiation was a natural consequence of interpreting the documentary evidence and the appellant suffered no unfairness.

The court also upheld the trial judge's costs award to the third-party lawyer.

The moving parties sought partial indemnity costs of $10,026.89 following an appeal.

The responding parties argued that because the moving parties' counsel charged partial indemnity rates, the costs award should be reduced to 60% of actual costs.

The court rejected this argument, applying the principle from Mantella that partial indemnity costs are determined by the factors in the Rules of Civil Procedure, not by a mathematical discount of actual fees, provided the award does not exceed actual costs.

The court fixed the moving parties' partial indemnity costs at $9,800.

The appellant appealed a trial judgment holding him personally liable for a $24,824.50 balance on a corporate credit card.

He argued that the absence of a signed credit card agreement precluded personal liability, and that the trial judge erred by allowing the respondent to reopen its case to call him as a witness.

The Divisional Court dismissed the appeal, finding that circumstantial evidence of the appellant activating and using the card was sufficient to establish liability under the terms of the agreement.

The court also held that the trial judge properly exercised his discretion in allowing the respondent to reopen its case and that there was no reasonable apprehension of bias.

The appellant appealed an order denying her leave to commence a derivative proceeding on behalf of a dissolved corporation.

The motions judge had found that the appellant was not acting in good faith due to substantial delay and a multiplicity of actions.

The Divisional Court dismissed the appeal, holding that the motions judge's finding of a lack of good faith was owed deference and that the appellant failed to demonstrate a palpable and overriding error.

The moving parties, defendant solicitors in a professional negligence action, sought leave to appeal an order dismissing their motion to stay the action.

The plaintiff had previously settled a family law dispute with her husband and signed a release protecting him from third-party claims.

The solicitors issued a third-party claim against the husband for contribution and indemnity and sought to stay the plaintiff's action based on the release.

The Divisional Court dismissed the motion for leave to appeal, finding no legal basis for the third-party claim against the husband, as contribution under the Negligence Act applies only to joint tortfeasors, not to concurrent breaches of contract and tort.

The Attorney General of Ontario brought a motion for an order prohibiting the respondents from making further motions in the proceedings without leave of a judge, pursuant to Rule 37.16 of the Rules of Civil Procedure.

The underlying matter involved an application for civil forfeiture under the Civil Remedies Act, to which the respondents responded with a counter-application seeking four billion dollars and alleging a massive conspiracy.

The court found that the respondents had initiated an endless string of unsuccessful, frivolous, and vexatious motions containing bizarre and scandalous allegations against judges and officials.

Applying the principles for vexatious proceedings, the court granted the motion and ordered costs of $1,500 payable to the Attorney General.

The plaintiff moved for leave to appeal a decision setting aside a Master's order that required the defendant to produce solicitor-client communications.

The defendant had filed an affidavit explaining his previous solicitor's misapprehension of his position in support of a motion to amend his Statement of Defence.

The motion judge held that waiver of privilege depended on whether the amendment was made under Rule 51.05 or Rule 26.01.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the motion judge's decision and that the issue of conditional or partial waiver of privilege is of general public importance.