Civil Litigation - Defendant - ODC

The defendant, the Attorney General of Canada, sought leave to appeal an order dismissing its motion to strike the plaintiff's statement of claim.

The plaintiff claimed damages for his internment during the Second World War due to his Italian origin.

The court found good reason to doubt the correctness of the motion judge's decision, noting that prior to 1953, there was no common law cause of action in tort against the Crown, and the Crown Liability Act is not retrospective.

Leave to appeal was granted as the issues raised had implications beyond the plaintiff's interest.

The Attorney General of Canada sought leave to appeal an interlocutory order that dismissed its motion to strike portions of the plaintiffs' Statement of Claim regarding post-confederation annuity payments under a rectified treaty.

The motion judge had refused to strike the pleadings, reasoning that complex constitutional cases involving treaty interpretation should not be decided at the pleadings stage without a complete factual record.

The court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's decision to allow the action to proceed to trial.

The applicant mother moved to set aside a Registrar's order dismissing her application for judicial review of an arbitration award for delay.

The arbitration award concerned custody and access to the parties' child following allegations of sexual abuse against the father.

The court noted that the applicant had also appealed a Superior Court order incorporating the arbitration award, and that appeal was scheduled to be heard by the Court of Appeal.

Finding that the issues raised in the judicial review would be expeditiously dealt with by the Court of Appeal, the court dismissed the motion to set aside the Registrar's order without prejudice to renew it after the Court of Appeal's decision.

The appellant appealed a Small Claims Court judgment awarding the respondent damages for unpaid invoices based on personal guarantees.

The appellant argued the respondent improperly split its claims to stay within the Small Claims Court monetary limit and that the guarantees were unenforceable because no prior written demand was made.

The Divisional Court held that the claims were not improperly split as they were based on separate guarantees for different corporate entities.

However, the court found that a formal demand for payment was a condition precedent to bringing an action on a collateral debt (guarantee).

Since no demand was made, the actions were dismissed.

The plaintiffs and an intervenor sought costs on a substantial indemnity basis against James W. Curran and his former solicitor, J. Perry Borden, following the dismissal of a motion to set aside a consent order.

The motion to set aside was based on unfounded allegations of fraud and deceit against another solicitor, David A. Seed.

The Divisional Court found that Mr. Curran and Mr. Borden acted as joint venturers in pursuing a meritless claim and making groundless fraud allegations.

The court awarded substantial indemnity costs to the plaintiffs against both Mr. Curran and Mr. Borden jointly and severally, and to Mr. Seed against Mr. Curran.

The appellants brought an appeal of an order by Master Haberman to the Divisional Court.

The court determined that the Master's order was interlocutory and, pursuant to section 17(a) of the Courts of Justice Act, the appeal properly lies to the Superior Court of Justice, not the Divisional Court.

Costs for the appearance were fixed at $3,000, payable by the ultimate losing party on the appeal.

Following a successful appeal, the appellants sought their costs.

The Divisional Court fixed costs on a partial indemnity scale, allowing the disbursements as claimed but reducing the fees claimed due to duplication of time and excessive preparation time by junior counsel.

Applying the principles from Boucher, the court awarded each appellant $15,000 in fees, plus their respective disbursements, payable by the respondents.

Following the dismissal of the plaintiff's appeal from a decision refusing certification of a proposed class proceeding, the respondent sought costs of the appeal.

The Divisional Court declined to award costs, agreeing with the motions judge that the case involved a novel question of law regarding the interpretation of s. 347 of the Criminal Code and was a matter of public interest.

The court found that in these circumstances, the appellant should not be penalized with costs despite being unsuccessful.

The defendant doctor moved for leave to appeal two interlocutory decisions dismissing his motion for summary judgment in a medical malpractice action.

The motions judge had allowed the plaintiff to file a late affidavit without complying with language requirements and had dismissed the summary judgment motion despite the plaintiff failing to file any expert medical report.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the orders and that the proposed appeal involved matters of importance, including the necessity of expert evidence in medical malpractice cases and the application of the limitation period.

The moving party brought a motion for leave to appeal a decision refusing to strike parts of the respondents' Statement of Claim.

The respondents claimed entitlement to increased annuities under a treaty.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision and noting that complex constitutional issues should generally not be decided at the pleading stage.

The plaintiff appealed a master's decision regarding forum non conveniens.

The master had found that the contract underlying the claim was subject to Virginia law and the parties had agreed to Virginia courts for dispute resolution.

The Divisional Court held that the master did not err in law in addressing the test for 'carrying on business' in Ontario or in weighing the factors in favour of the defendant.

The appeal was dismissed with costs.

The defendant moved for leave to appeal a decision refusing to strike out an affidavit submitted by the plaintiffs.

The defendant argued the affidavit was improper sur-reply and constituted case-splitting, relying on trial evidence rules.

The court dismissed the motion, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision.

The court affirmed that the strict evidentiary rules against case-splitting at trial do not apply to the filing of affidavits on motions under Rule 39.02.

The defendants appealed a motion judge's decision dismissing their request to bifurcate a personal injury jury trial into separate liability and damages phases.

The Divisional Court upheld the dismissal, finding that the case was not exceptional enough to warrant splitting the trial.

The court also affirmed that binding precedent generally prohibits the bifurcation of trials where a jury notice has been served, and declined to alter that law in this factual context.

The appellant appealed an order of a motion judge who held that costs ordered by the Court of Appeal, which did not specify a payment date, were payable at the conclusion of the litigation.

The Divisional Court allowed the appeal, finding that the motion judge erred in applying previous case law regarding interlocutory motions to a final disposition of an appeal.

The Court also noted that under Rule 57.03(1) of the Rules of Civil Procedure, the norm is now that costs are payable within 30 days unless otherwise ordered.

Following the dismissal of the applicant's application for judicial review of an Ontario Human Rights Commission decision, the court determined the issue of costs.

The respondents sought costs, while the applicant argued that a costs award would impose a significant burden.

Applying the principles of fairness and reasonableness, the court fixed costs at $3,500 for the Commission and $3,500 for the Hospital and doctor, payable by the applicant.

Supplementary reasons regarding a sealing order and costs following an appeal.

The court varied the broad sealing orders made by the Master and a single judge, restricting the sealing order to only the inadvertently disclosed privileged document, as there was no demonstrable prejudice to justify sealing the entire court file.

The court also fixed the successful plaintiff's costs of the motion for leave to appeal and the appeal at $25,000 on a partial indemnity basis, declining to award substantial indemnity costs.

The plaintiff, a lawyer, sought leave to extend the time to appeal a Master's decision that refused him leave to amend his statement of claim against Legal Aid Ontario.

The plaintiff had initially filed the appeal in the wrong court and delayed significantly in transferring it to the Divisional Court despite being notified of the error.

The court dismissed the motion, finding the delay inordinate and poorly explained, the proposed appeal entirely without merit, and that further delay would prejudice the self-represented defendant.

Professional Supply Canada Company and Ford Motor Company of Canada Limited brought a motion to be added as intervenors and parties to an application for judicial review.

The underlying application challenged a variance granted by the Technical Standards and Safety Authority for the installation of direct gas-fired heaters at Ford Canada's facilities.

The court found that both moving parties had a significant financial interest in the proceedings, could be adversely affected by the judgment, and would provide a unique perspective.

The motion was granted, and the moving parties were added as respondents.

The defendant appealed a decision of a Superior Court judge that overturned a Master's order removing the plaintiff's solicitors of record.

The plaintiff's solicitors had inadvertently received a privileged opinion letter from the defendant's counsel.

Applying the test from Celanese Canada Inc., the Divisional Court found no real risk of material prejudice to the defendant, as the document could not be used at trial and the solicitor had not read the details.

The appeal was dismissed.

The plaintiff was seriously injured when the car she was a passenger in swerved off the road and struck a Canada Post super mailbox, which fell onto the car.

The plaintiff sought to amend the statement of claim to add Canada Post as a defendant, alleging negligence in the placement and anchoring of the mailbox.

The Master dismissed the motion, finding no duty of care to users of the roadway.

On appeal, the Divisional Court allowed the appeal, holding that it was not plain and obvious that Canada Post owed no duty of care to users of the roadway who might veer off and strike an unsafely anchored structure.