Civil Litigation - Defendant - ODC

Following the dismissal of an application for judicial review on the basis of prematurity, the court determined the costs to be awarded to the respondents.

The respondents sought $36,915 in fees, which the court found to be substantially beyond what might reasonably be anticipated.

The court awarded the respondents costs fixed at $15,000 inclusive of GST and disbursements on a partial indemnity basis.

The defendants sought leave to appeal an interlocutory injunction that prevented them from forcibly entering the plaintiff's unit and selling her shares prior to trial.

The dispute arose after the plaintiff installed a washer and dryer without the board's approval.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's application of the RJR-MacDonald test for injunctive relief.

The court also held that the matter was not of general public importance, but rather specific to the litigants.

The appellant car dealership appealed a trial judgment finding it liable for breach of contract and awarding $7,785 in damages plus over $14,000 in costs for selling a used van with a tampered odometer.

The Divisional Court upheld the finding of liability but found the trial judge erred in calculating damages by comparing the financing costs of the defective van with a newer, more expensive replacement van.

The Court recalculated the damages to $4,996.75 based on the base purchase price minus the trade-in credit, and reduced the trial costs award to $5,000 all-inclusive.

The appellants appealed a trial judge's decision regarding a real estate transaction involving a septic system.

The appellants argued that the vendors actively concealed a latent defect.

The Divisional Court dismissed the appeal, finding no palpable or overriding error by the trial judge.

The property was sold 'as is', the purchasers were experienced realtors who insisted on the warranty clause, and there was no evidence of existing problems with the septic system at the time of closing.

The appeal was dismissed without costs.

The appellants appealed a Master's decision dismissing their motion to set aside service outside Ontario and permanently stay the action on the basis that Ontario was not the forum conveniens.

The Divisional Court determined that the standard of review for a Master's decision on forum conveniens is correctness, as it is vital to the final disposition of the lawsuit.

Applying this standard, the Court upheld the Master's finding that Ontario was the appropriate forum, noting the plaintiff's central location and the lack of evidence showing another jurisdiction was clearly more appropriate.

The appeal was dismissed.

Following an appeal from the Small Claims Court where success was divided between the appellants and respondents, the court received written submissions on costs.

The appellants argued they had made an offer to settle that remained open, but the court noted that under Rule 14.03(3) of the Small Claims Court Rules, an offer expires when the court disposes of the claim.

Applying the general rule that no costs should be allowed where success is divided, the court ordered no costs.

The respondent in the appeal brought a motion to introduce fresh evidence arising from an examination for discovery.

The Divisional Court dismissed the motion, applying the test for adducing fresh evidence.

The court found that the proposed evidence regarding authority to bind a corporation was not determinative of the issue on appeal, which concerned an order to post security, and that the evidence could have been obtained with reasonable diligence prior to the initial proceeding.

The appellants, owners of a condominium project, appealed an order requiring them to hold five units as security pending the determination of an action brought by the respondent purchaser.

The Divisional Court allowed the appeal, finding that the motions judge had effectively granted a Mareva injunction without applying the proper legal test.

There was insufficient evidence of a strong prima facie case or a real risk of asset dissipation.

The paragraphs of the order requiring the units to be held as security were deleted.

The applicants, several police officers, brought a motion for a limited publication ban regarding Notices of Hearing and the Chief of Police's report.

The Divisional Court dismissed the motion, finding that inadequate notice was given for the relief regarding the Notices of Hearing, and that the applicants failed to satisfy the Dagenais/Mentuck test for a publication ban on the Chief's report, agreeing with the prior endorsement of the motion judge.

Following a successful appeal by the insurer that decertified a class proceeding due to a change in the law, the parties made submissions on costs.

The insurer sought costs of the appeal and the certification motion, while the representative plaintiff and the Class Proceedings Fund argued for no costs.

The Divisional Court declined to award costs to either party for the appeal, the motion for leave to appeal, or the certification motion, finding that the proceeding raised novel issues of law and matters of broad public interest under section 31 of the Class Proceedings Act.

The appellant appealed a trial decision dismissing his claim for damages arising from an incident where he came into contact with a transit bus.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the bus driver was not negligent.

The court held that the trial judge did not err by failing to explicitly reference the reverse onus provision in s. 193(1) of the Highway Traffic Act, as the evidence of the accident reconstruction expert supported the finding that the appellant walked or ran into the side of the bus and the driver could not have prevented the accident.

The trial judge's alternative assessment of damages was also upheld.

The appellant appealed an order dismissing a motion to enforce a settlement.

The respondent had been seriously injured in a school wrestling incident.

The respondent's former solicitor accepted a settlement offer, but the respondent promptly repudiated it, claiming he gave no instructions.

The motion judge found that the appellant's counsel was on notice of 'red flags' regarding the respondent's solicitor's authority, as correspondence indicated the solicitor was taking negotiating positions without consulting his client.

The Divisional Court dismissed the appeal, holding that the motion judge's factual findings were supported by the evidence and justified refusing to enforce the settlement.

The appellant condominium corporation appealed a Small Claims Court judgment awarding damages to a former unit owner.

The owner had paid a special assessment for major repairs before selling her unit.

When the repair costs came in lower than expected, the board transferred the surplus to the reserve fund rather than issuing refunds.

The Divisional Court allowed the appeal, finding that the board acted reasonably and in accordance with the Condominium Act, 1998, which requires common surpluses to be applied to future expenses or paid into the reserve fund.

The appellants appealed a trial judgment and brought a motion to admit fresh evidence.

The Divisional Court dismissed the motion for fresh evidence, finding a lack of diligent search and that the evidence would not be conclusive.

The court also dismissed the appeal, holding that the trial judge made no palpable and overriding error in finding that the respondents were unaware the appellants were operating an independent business, given the level of trust and infrequency of visits.

The appellant sought leave to appeal a trial judge's order awarding wasted costs against him and his counsel personally, following an adjournment necessitated by counsel's failure to respond to Requests to Admit.

The appellant's counsel argued he was not given proper notice that costs might be awarded against him personally.

The Divisional Court dismissed the motion for leave, finding that the solicitor had objective notice of the possibility of personal costs and was given a full opportunity to be heard.

The trial judge made no error in principle in exercising her discretion.

The court issued a brief endorsement to correct a clerical error in its previous reasons dated November 22, 2006.

The judge clarified that by ordering a new trial, the appeal was allowed, not dismissed, and amended paragraph 23 accordingly.

The appellant appealed an order of a Master dismissing its motion to amend a case management timetable and granting the respondent's cross-motion to dismiss the action for breach of court orders and timetables.

The court considered the appropriate standard of review for a Master's final discretionary decision, noting conflicting jurisprudence between a rehearing standard and a 'clearly wrong' standard.

The court concluded it was unnecessary to finally determine the standard, as the appeal would be dismissed under either standard.

The Master was not clearly wrong, and the court would have exercised its discretion in the same way.

The respondent moved to quash an appeal brought to the Divisional Court from an order of a Master.

The Master's order required the appellant to provide legal descriptions of properties for execution of costs judgments.

The court held that the Master's order was interlocutory, not final, and therefore the appeal properly lay to a single judge of the Superior Court.

The appeal was struck from the Divisional Court list, with the appellant given 30 days to transfer it to the Superior Court, conditional on paying $500 in costs.

The plaintiff brought a motion for an extension of time to apply for leave to appeal an order refusing an interlocutory injunction against a bank regarding credit reporting.

The underlying action had already been settled and dismissed by a Master.

The court dismissed the motion, finding there was no legal framework within which it could be brought given the dismissal of the action.

Costs of $1,500 were awarded to the respondent bank.

The moving parties sought leave to appeal an order dismissing their motion for an anti-suit injunction and staying their counterclaims in Ontario pending the resolution of parallel proceedings in Delaware and Illinois.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision.

The motion judge correctly applied the Amchem test and concluded that the foreign forums were more appropriate, noting that the jurisdiction clause in the parties' agreement was not exclusive.