Civil Litigation - Defendant - ODC

The appellants appealed a trial judgment dismissing their personal injury action following a jury verdict that awarded zero damages for a motor vehicle accident.

The appellants argued the verdict was perverse because objective evidence showed a soft tissue injury.

The Divisional Court dismissed the appeal, holding that the jury's assessment of credibility and conclusion that the injury was too slight to warrant compensation were entitled to great deference and supported by the evidence.

The court also found no errors in the trial judge's charge to the jury.

The appellant fire chief appealed an order referring a fire safety inspection dispute back to the Office of the Fire Marshal.

The original inspection order required the installation of a sprinkler system.

The Fire Marshal upheld the order but allowed the respondents to submit alternative measures to the fire department for approval.

The fire department rejected the alternatives, and the appellant sought an order directing compliance.

The application judge found the Fire Marshal improperly delegated the final decision to the fire department without a mechanism for review, and referred the matter back to the Fire Marshal.

The Divisional Court dismissed the appeal, agreeing that the delegation was improper and the referral was a sensible exercise of discretion under s. 32 of the Fire Protection and Prevention Act.

H20 Power Limited Partnership and Resolute FP Canada Inc. brought a motion for leave to intervene as added parties in an application for judicial review concerning the Crown's duty to consult and accommodate the Anishinaabe Nation regarding hydroelectric contracts.

The applicants opposed full intervention, arguing it should be limited to the issue of relief.

The court found that the proposed interveners had a direct interest in the contracts and could provide a useful contribution regarding the operation of the generating stations.

Leave to intervene was granted, subject to conditions limiting their evidence and argument to avoid duplication and delay.

The appellant construction company appealed a Small Claims Court judgment awarding the respondent residents $14,700 in damages for nuisance, trespass, and negligence arising from noise and odour emitted by a temporary asphalt plant.

The Divisional Court upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding errors in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify the respondents' expert witness despite her employment with an environmental advocacy group.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no compensable personal injury or property damage to ground a negligence claim.

The damages award remained unchanged.

Following a successful appeal where a new trial was ordered, the court determined the quantum of costs.

The court noted that while the appellants were successful, they could have achieved the same result with more judicious effort.

Costs were fixed at $5,000 inclusive of taxes and disbursements, payable following the new trial or settlement.

The unsuccessful appellant in an OMB appeal sought to be excused from paying costs, arguing he was acting as a public interest litigant.

The court rejected this argument, finding the litigation did not involve an issue of public significance extending beyond the immediate parties.

Applying the principle that costs must be fair and reasonable, the court found the respondents' requested amounts excessive and awarded $10,000 to the primary respondent and $5,000 to each of the other two respondents.

The appellant appealed a Small Claims Court judgment dismissing his claim for $14,000 against a law firm.

The appellant alleged the money was a retainer for unprovided services, while the law firm maintained $9,000 was received for rent owed by a sub-tenant, who corroborated this account.

The Divisional Court dismissed the appellant's motion to introduce fresh evidence and dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility assessments.

Costs of $2,000 were awarded to the respondents.

The appellants appealed a Small Claims Court judgment finding misrepresentation regarding lighting services provided to the respondent.

The trial judge had found the individual appellant personally liable because the corporate appellant was dissolved.

The Divisional Court dismissed the appeal regarding liability, finding no palpable and overriding error.

However, the court allowed the appeal regarding the proper defendant, holding that an action can be maintained against a dissolved corporation and there was no evidence the individual appellant was a party to the contract in his personal capacity.

Judgment was entered against the corporate defendant instead.

The proposed appellant sought leave to appeal an order allowing the plaintiff, an unregistered limited partnership, to continue an action commenced before it was properly registered.

The proposed appellant argued that the word 'maintain' in section 28 of the Limited Partnerships Act means 'commence', requiring the plaintiff to start a new action.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting case law and no good reason to doubt the correctness of the motions judge's determination that 'maintain' allows for the continuation of an action already commenced.

The appellants appealed a Master's order dismissing their motion to extend the time for service of a Statement of Claim arising from a fatal motor vehicle accident.

The Master had found that the defendants would be prejudiced by the delay.

The Divisional Court allowed the appeal, finding that the Master erred in law by concluding that a co-defendant's right to claim contribution and indemnity was lost due to the expiry of a limitation period, and by failing to hold the defendants to their evidentiary obligation to demonstrate actual prejudice caused by the delay in service.

The appellants were granted leave to serve the Statement of Claim.

The appellant registered a construction lien on a property owned by his estranged wife, which was subject to mortgages held by the respondents.

The respondent mortgagees successfully moved to discharge the lien under section 47 of the Construction Lien Act on the basis that it was registered in bad faith.

On appeal, the appellant argued the motion judge erred by not applying the summary judgment test under Rule 20.

The Divisional Court dismissed the appeal, holding that the motion judge properly exercised his broad discretion under section 47 and was not required to apply Rule 20 since the motion did not seek to dismiss the action.

Following the dismissal of his appeal regarding the enforcement of a settlement, the appellant sought to be relieved from paying costs, claiming impecuniosity.

The Divisional Court rejected this argument, finding the appellant failed to provide sufficient evidence of his financial situation.

The court noted the appellant had $30,000 in settlement funds held in trust, which could satisfy the costs award.

Costs were fixed at $5,000 payable to the respondent police services board out of the trust funds.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Claim to add claims of negligence and negligent misrepresentation regarding an adhesive product.

The Master had found the proposed amendments sought to plead new facts and causes of action that were statute-barred.

The Divisional Court allowed the appeal, finding that the original claim contained sufficient material facts to support the new legal theories, and the amendments merely sought alternative remedies based on the same facts.

The moving party sought leave to appeal, which was dismissed on the basis of prematurity.

The successful respondents sought costs.

The moving party argued each party should bear its own costs due to the public interest and novelty of the issue.

The court rejected this argument, finding that the usual rule of costs following the event applied, especially since the motion was dismissed for prematurity.

The court awarded costs of $3,000 inclusive to the clients represented by Mr. Streisfield.

The appellants appealed a Small Claims Court judgment awarding the respondent $14,000 for breach of a distribution agreement.

The dispute arose when the respondent refused to make a payment without first inspecting the machinery, which the appellants refused to allow.

The Divisional Court found that while the Deputy Judge erred in admitting two affidavits without considering the appellants' inability to cross-examine the deponents, this error did not affect the result.

The court upheld the findings that the operability of the machine was relevant and that the appellants were liable for the respondent's loss.

The appeal was dismissed.

Following the dismissal of the appellant's appeal, the respondent sought partial indemnity costs of $5,565.54.

The self-represented appellant argued the amount was excessive and disproportionate to the underlying judgment of $772.06.

The court agreed that 19 hours of preparation was excessive for a straightforward appeal, but noted the appellant bore responsibility for bringing the appeal.

Costs were fixed at $2,500 inclusive of HST and disbursements.

The plaintiffs sought leave to appeal an order upholding a Master's decision requiring them to post further security for costs.

The plaintiffs, who were non-residents and not impecunious, argued the judge misapplied the 'good chance of success' test by conflating it with the summary judgment test and failing to define it.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the order and holding that the Master and the appeal judge had properly applied the established legal test.

The plaintiff appealed an order of a Master dismissing her action for delay following a status hearing.

The action arose from the suspension of her nursing licence, allegedly due to a flawed report by the defendant physician.

The Master had applied a rigid two-part test, finding the plaintiff failed to provide an acceptable explanation for the delay.

The Divisional Court allowed the appeal, holding that the Master erred in principle by failing to apply a contextual approach and by ignoring the broader litigation history, including a companion case that resolved a key issue regarding document admissibility.

The order dismissing the action was set aside.

The appellants appealed an order dismissing their motion to discharge a certificate of pending litigation registered against their residential property.

The respondents had obtained the certificate in the context of an oppression remedy claim involving a corporate dispute.

The Divisional Court allowed the appeal and discharged the certificate, finding that the motions judge erred in law by applying a broad equitable discretion instead of determining whether there was a reasonable claim to an interest in land.

The court concluded that the pleadings did not demonstrate a reasonable claim to an interest in the land, as the claims were for damages and corporate remedies, not for an interest in the property itself.

The appellant appealed an order requiring the defendants' lawyers to pay a costs award to his former solicitor, Mr. Khan, and creating a solicitor's lien.

The Divisional Court allowed the appeal, finding that the appellant was not properly served with the motion, there was no joint application for approval of the contingency fee agreement as required by the Solicitors Act, and the appellant had no opportunity to address the issues at the hearing.

The order was set aside, the lien discharged, and costs awarded to the appellant.