Civil Litigation - Defendant - ODC

The developer brought a motion for security for costs against a non-profit corporation seeking judicial review of a Conservation Authority decision approving a residential subdivision.

The corporation argued it was a public interest litigant and that an order for security would terminate the litigation.

The court found the corporation had insufficient assets to pay costs and rejected the public interest litigant argument, noting the litigation primarily concerned a localized neighbourhood dispute rather than a broader public interest.

The court ordered the corporation to post $20,000 as security for costs.

The respondent successfully defended an appeal of a Small Claims Court judgment and moved for costs of the appeal and the motion, seeking $12,500.

The court noted that the amount claimed was out of proportion to the $10,000 value of the Small Claims Court case.

Applying principles of proportionality and considering the limits on costs in Small Claims Court proceedings, the court fixed the costs of the appeal and the motion at $2,500.

The appellant appealed a Master's order refusing to set aside the administrative dismissal of her action for damages for sexual assault.

The appellant argued that because her claim involved sexual assault and was not subject to a limitation period, the Master erred by not applying a more lenient test for setting aside the dismissal.

The Divisional Court dismissed the appeal, finding that the Master correctly considered the nature of the claim as a contextual factor but properly concluded that the appellant's failure to move the action forward was unrelated to the nature of the assault, and that the respondents were entitled to expect compliance with the Rules of Civil Procedure.

The defendant, Dietrich Construction Limited, sought leave to appeal an order allowing the plaintiffs to amend their Statement of Claim to include claims for sand removal dating back to 1998.

The defendant argued the motion judge erred regarding the expiration of the limitation period and the conflict between the Limitations Act, 2002 and Rule 26.01.

The Divisional Court dismissed the motion, finding no conflict in the law and that discoverability remained a factual issue for the trial judge.

The applicants sought leave to appeal a costs order made by a motions judge following a consent order settling an estate administration dispute.

The motions judge had fixed costs based on written submissions, awarding the applicants $20,000 and the respondents $15,000.

The applicants argued the judge erred by not awarding full indemnity costs and by not reviewing the entire court file.

The Divisional Court dismissed the motion for leave, finding no error in principle in the motions judge's exercise of discretion and no conflicting decisions or matters of general importance to justify leave.

The respondent brought a motion for leave to appeal an interlocutory order of a motion judge.

The court dismissed the motion, finding that the moving party failed to meet the threshold test set out in Rule 62.02(4)(a) or (b) of the Rules of Civil Procedure.

The court also noted that reasons for refusing leave to appeal an interlocutory order generally need not be given.

The appellants appealed a decision dismissing their application to reopen a dispute over solicitor fees.

The dispute had previously been resolved through Minutes of Settlement during an assessment proceeding under the Solicitors Act.

The Divisional Court upheld the application judge's finding that attempting to reopen the settled dispute was an abuse of process, noting that a settlement of an assessment is not itself subject to assessment.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a trial judgment finding him liable for breaching a non-competition clause in his employment contract and ordering him to repay a $20,000 non-compete payment.

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

The appellant had met the conditions for the payment by remaining employed for one year and not competing during that time.

Although the non-competition clause was enforceable and breached later, the respondent proved no damages, so the action was dismissed.

The appellants appealed a decision declining to certify a class action regarding an alleged design defect in digital cameras that caused an 'E18' error message.

The motions judge had struck the evidence of the appellants' proposed expert on the basis that he lacked the necessary qualifications in camera design.

The Divisional Court upheld the motions judge's decision, finding no error in the exclusion of the expert evidence or the conclusion that there was no basis in fact for the common issue.

The appeal was dismissed with costs awarded to the respondents.

The moving party sought leave to appeal an order dismissing its motion to strike the plaintiffs' statement of claim as statute-barred.

The plaintiffs had sued for water damage to their home, and the moving party argued the limitation period began when its technician caused holes in the roof.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's conclusion that discoverability could not be determined on the pleadings alone and required a full factual record.

The appellant appealed a motion judge's order dismissing a motion to transfer an application to the Divisional Court.

The underlying application sought a declaration that the Minimum Maintenance Standards regulation was ultra vires and invalid, arising from a motor vehicle accident tort action against a municipality.

The Divisional Court dismissed the appeal, finding that under section 8 of the Judicial Review Procedure Act, the motion judge had the discretion to retain jurisdiction over the application rather than transferring it, and that this discretion was exercised reasonably to facilitate judicial economy.

The respondents in an application for judicial review brought a motion to strike over 100 paragraphs from the applicant's affidavit.

The applicant, a suspended police officer, sought judicial review regarding the disbandment of the Leamington Police Service and related severance and disciplinary issues.

The moving parties argued the challenged paragraphs were irrelevant, contained legal argument, or expressed personal opinions.

The Divisional Court agreed that the affidavit should be confined to relevant facts and non-contentious background.

The court struck the majority of the challenged paragraphs, finding they dealt with the merits of underlying charges not directly at issue, contained legal arguments better suited for a factum, or expressed unsupported personal views.

The defendant sought leave to appeal an order certifying a class action regarding customs brokerage fees charged on international shipments.

The core issue for the leave motion was whether the motion judge erred in certifying as a common issue whether the brokerage services were 'unsolicited services' under the Consumer Protection Act, 2002, without considering the consignees' knowledge or consent.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's conclusion that consumer knowledge is irrelevant under section 13 of the Act, and noting that the issue is a matter of public importance.

The appellant appealed a Master's decision dismissing her application to amend her statement of claim to include derivative claims under the Family Law Act after the limitation period had expired.

The Master had found the proposed amendment constituted a new cause of action.

The Divisional Court allowed the appeal, applying the Supreme Court of Canada's decision in Cahoon v. Franks.

The Court held that the factual situation entitling the appellant to damages was the respondents' negligence in the motor vehicle accident, and adding derivative claims based on her husband's injuries did not create a new cause of action.

The appellant appealed an order setting aside a previous consent judgment that had dismissed the respondent's action for lack of jurisdiction.

The motions judge had set aside the consent order based on a subsequent change in jurisprudence regarding the court's jurisdiction.

The Divisional Court allowed the appeal, holding that a change in the law does not constitute 'facts arising or discovered after' an order is made under Rule 59.06(2)(a).

The court also found that the respondent's application to re-open the action was barred by cause of action estoppel.

The defendants sought leave to appeal a decision certifying a class action under the Class Proceedings Act.

The court applied the test for leave to appeal under Rule 62.02 of the Rules of Civil Procedure.

Finding no conflicting decisions and no reason to doubt the correctness of the motions judge's decision, the court dismissed the application for leave to appeal with costs.

The applicants brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order quashing their application for judicial review of ongoing regulatory disciplinary proceedings.

The Divisional Court dismissed the motion, agreeing with the motion judge that the application for judicial review was premature because the issues should be determined at first instance by the regulatory hearing panel.

Costs of $15,000 were awarded to the respondent on consent.

The appellant appealed an order dismissing its motion to remove the respondents' lawyers of record due to an alleged conflict of interest.

The appellant argued that a 'near client' relationship was established through a telephone call and an email sharing information among franchisees defending against claims by a third-party franchisor.

The Divisional Court dismissed the appeal, finding no error in the motion judge's conclusion that the shared information was used for its intended purpose and did not establish a near client relationship.

The plaintiff appealed an order of a motions judge that set aside a Master's order declaring the defendants had waived solicitor/client privilege.

The defendants had sought to amend their statement of defence, filing an affidavit blaming their former solicitor for errors, which the Master found constituted a waiver of privilege.

The Divisional Court allowed the appeal, finding that the motions judge failed to apply the proper standard of review and erred by attempting to case manage the sequence of motions after confirming the Master's finding of waiver.

The Master's order was restored.

The appellants appealed a Small Claims Court decision finding the late property owner liable for annual levies for the maintenance of private roads and parklands in Wychwood Park.

The appellants argued that because the Trust Deed establishing the levies was not registered on title under the Land Titles Act, it was not binding.

The Divisional Court dismissed the appeal, holding that the common law doctrine of actual notice applies under the Land Titles Act, and the owner was bound by the Trust Deed because he had actual notice of it.

The court also declined to hear new arguments raised for the first time on appeal regarding positive covenants and the rule against perpetuities.