Civil Litigation - Defendant - ODC

The plaintiff appealed the dismissal of his personal injury action following a motor vehicle accident.

The trial judge found the plaintiff suffered a permanent serious impairment but dismissed the action because the plaintiff failed to provide independent evidence corroborating his change in function under s. 4.3(5) of O. Reg. 461/96.

The Divisional Court allowed the appeal, holding that s. 4.3(5) does not preclude a plaintiff from providing the corroborating evidence.

The court found that interpreting the provision to require independent corroboration would disproportionately impact vulnerable groups and be inconsistent with Charter equality values.

The appellant appealed the dismissal of his claim for damages arising from a motor vehicle accident.

At trial, the judge excluded opinion evidence from several of the appellant's treating professionals and medical assessors because they had not complied with the expert report requirements of Rule 53.03.

The Divisional Court upheld the trial judge's rulings, confirming that the application of Rule 53.03 depends on the nature of the evidence (opinion vs. factual) rather than the role of the witness (treating professional vs. litigation expert).

The court held that any witness seeking to provide expert opinion evidence must comply with Rule 53.03.

The appellant appealed a Small Claims Court judgment ordering her to repay $9,534.91 to the respondent, disputing $4,501.22 of that amount.

The appellant argued the trial judge committed palpable and overriding errors in finding that three specific payments were loans and failed to provide adequate reasons.

The Divisional Court dismissed the appeal, finding that the trial judge's conclusions were supported by the evidence, including bank records and receipts, and that the reasons provided were sufficient to explain why the respondent's evidence was preferred.

The appellant sought leave to appeal a $1,000 costs order made by a Deputy Judge after her two Small Claims Court actions were consolidated and dismissed for exceeding the monetary jurisdiction due to claim splitting.

The appellant argued she was not given an opportunity to make submissions on costs.

The Divisional Court found that the appellant had made submissions regarding her inability to pay, and that the Deputy Judge made no error in principle.

The application for leave to appeal was dismissed.

The plaintiff's action was struck from the trial list and subsequently dismissed by a Master due to the inaction of her former counsel.

The plaintiff's second lawyer failed to advise her of the dismissal or her right to appeal.

Upon retaining new counsel, the plaintiff brought a motion to extend the time to file a Notice of Appeal of the Master's order.

The Divisional Court granted the motion, finding that the delay was attributable to the plaintiff's former counsel and that extending the time would not prejudice the defendants, in accordance with the principle that matters should be determined on their merits.

The appellant appealed a Small Claims Court judgment, arguing the trial judge exceeded the court's $25,000 monetary jurisdiction by finding the appellant owed the respondents $42,633.57 before setting off $21,094.72 owed to the appellant, resulting in a net judgment of $21,538.85.

The Divisional Court dismissed the appeal, holding that monetary limits restrict the amount recoverable by the final judgment, not the reasoning process or intermediate calculations used to arrive at that amount.

The net judgment was within the court's jurisdiction.

The plaintiff brought a motion for leave to extend the time for serving a Notice of Appeal and Certificate Respecting Evidence following a Small Claims Court decision dismissing his property damage claim.

The delay in service was primarily caused by the court sending an unsigned, undated copy of the decision, followed by a delayed signed copy.

The Divisional Court granted the motion, finding that the plaintiff formed the intent to appeal in time, the 14-day delay was largely the court's fault, there was no prejudice to the defendant, and the justice of the case favoured granting relief.

No costs were awarded.

The respondent Moose Cree First Nation brought a motion to strike portions of a judicial review application and supporting affidavit filed by the MoCreebec Council of the Cree Nation regarding a hydroelectric project.

The parties resolved several issues, including the removal of Charter and Aboriginal rights claims.

The court deferred a decision on striking hearsay evidence in the affidavit pending further information.

Given the complexity and public policy implications, the court referred the remaining issue of the applicant's capacity to bring the application to a full panel of the Divisional Court.

Following the dismissal of the applicant's motion for leave and judicial review of a Law Society Hearing Panel decision, the court determined costs.

The respondent sought partial indemnity costs of $7,669.40.

The applicant argued for no costs, claiming the issue was novel and blaming the respondent for not agreeing to an adjournment.

The court rejected the applicant's arguments, noting he chose the venue and his own costs outline exceeded the respondent's claim.

The court awarded the successful respondent costs fixed at $5,000 inclusive of disbursements and HST.

The applicant sought judicial review of a decision by the Director's Delegate of FSCO, which found she was not involved in an 'accident' under the Statutory Accident Benefits Schedule.

The applicant was injured while driving a pocket bike on the property of the bike's owner.

The Divisional Court upheld the Delegate's decision, finding that under the Off-Road Vehicles Act, the pocket bike was not required to be insured while operated on the owner's property.

Consequently, it did not qualify as an 'automobile' at the time of the collision, and the application for judicial review was dismissed.

The appellant sought costs of $107,070 plus disbursements after successfully appealing a decision under the Municipal Conflict of Interest Act.

The respondent argued for no costs on the basis that he was a public interest litigant.

The Divisional Court declined to award costs to either party, noting that success on the appeal was divided, the proceeding raised novel legal issues of public importance regarding municipal codes of conduct, and it was reasonable for the respondent to have pursued the application initially.

Following an appeal with mixed success, the court issued a brief endorsement ordering that no costs be awarded to either party.

The appellants appealed a Small Claims Court decision that ordered them to repay a $21,885.40 commercial debt to the respondent but refused to allow their counterclaim for equitable set-off of $20,886.37 in unpaid legal fees.

The Divisional Court allowed the appeal, finding the trial judge erred in law.

The court held that the two transactions were sufficiently close in time and context between the same parties to warrant equitable set-off, making it manifestly unjust to allow the respondent to enforce repayment without accounting for the cross-claim.

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 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 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.