Civil Litigation - Defendant - ODC

The appellant appealed a Master's order dismissing her action for delay.

The action had been struck from the trial list due to the inaction of her first lawyer, and a subsequent motion to restore it was delayed by her second lawyer, who concealed his neglect from her.

On appeal, the Divisional Court admitted fresh evidence detailing the second lawyer's neglect.

The court found the Master made reversible errors by inferring intentional delay without considering the appellant's instructions to her lawyers, and by presuming prejudice due to the expiry of a limitation period.

Applying the conjunctive test from Nissar, the court held the appellant had an acceptable explanation for the delay (solicitor negligence) and the defendants suffered no non-compensable prejudice.

The appeal was allowed and the action restored to the trial list.

The defendant applied for leave to appeal an order certifying a class proceeding regarding breach of contract claims related to prepaid phone card expiry dates.

The court applied the test under Rule 62.02(4) of the Rules of Civil Procedure and found no conflicting decisions or good reason to doubt the correctness of the certification judge's order.

The court emphasized that the Class Proceedings Act is remedial and that the certification judge appropriately addressed the commonality of the systemic practices.

The application for leave to appeal was dismissed.

The appellant appealed a Small Claims Court judgment ordering him to pay $10,000 to the respondent.

The respondent claimed the money was a loan, while the appellant claimed it was an investment in a joint business venture.

The Divisional Court allowed the appeal and ordered a new trial, finding that the deputy justice had improperly reversed the burden of proof by requiring the appellant to prove the money was an investment rather than requiring the respondent to prove it was a loan.

The appellant appealed a summary trial decision dismissing her claim for $32,000 under an equity-splitting agreement related to the sale of the respondent's house.

The trial judge had found the agreement unenforceable because the appellant was not a licensed real estate agent under the Real Estate and Business Brokers Act, and because the agreement was unconscionable due to the respondent's vulnerability and unequal bargaining power.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the bargain was unfair and unconscionable.

The appellants appealed the dismissal of their motion for summary judgment.

They argued that s. 97(2) of the Employment Standards Act barred the respondent's civil action for wrongful dismissal because she had already commenced an ESA complaint.

The Divisional Court upheld the motions judge's decision to decline ruling on the summary judgment motion, noting the respondent's serious allegations of intentional torts, including misrepresentation and fraud affecting the ESA process.

The court found that the evidence required for the tort claims would overlap with the wrongful dismissal claim, making summary judgment inefficient and inappropriate.

The appeal was dismissed.

The appellants appealed an order granting the respondent leave to examine a hostile, out-of-jurisdiction witness before trial pursuant to Rule 36.01(2).

The motions judge had ordered the examination to be videotaped but denied further conditions.

The Divisional Court agreed the examination was warranted but allowed the appeal in part, ordering that a judge be present during the examination to resolve anticipated objections and privilege issues given the witness's hostility.

The defendant moved for leave to appeal an interlocutory order that allowed its appeal from a Master's decision but remitted the matter for a new status hearing with the right for the plaintiff to file additional evidence.

The court dismissed the motion for leave to appeal, finding that the proposed issues did not involve unsettled law and did not raise matters of general importance.

Costs of $5,000 were awarded to the plaintiff.

The appellants appealed an order directing the sale of a residential property they co-owned as tenants in common with the respondent.

The appellants sought physical partition instead of sale.

The Divisional Court dismissed the appeal, finding that the property's configuration and the appellants' failure to pay municipal taxes and insurance made partition impractical and sale the most beneficial option.

The respondent's cross-appeal to purchase the appellants' share at a fixed price was dismissed, as joint tenants are entitled to the fair market value obtained through an open market sale.

The respondent was awarded costs for both the application and the appeal.

Following the quashing of the plaintiff's appeal, the successful defendant sought partial indemnity costs of $29,862.69.

The plaintiff argued the amount was excessive and sought a reduction to $6,500, alleging unreasonable conduct by the defendant's counsel.

The court found no evidence of unreasonable conduct and noted the defendant had to respond to the appeal pending the motion to quash.

After deducting amounts related to Superior Court proceedings, the court fixed the defendant's costs of the appeal and motion to quash at $22,000 inclusive of disbursements and HST.

The defendants appealed an interlocutory order denying the production of certain medical records.

The motion judge had refused production based on the assumption that the individual whose records were sought had cerebral palsy and could not serve as a proper comparator.

On appeal, counsel clarified that there was no conclusive diagnosis of cerebral palsy.

The Divisional Court allowed the appeal and ordered production, noting that the trial judge retains the discretion to exclude evidence if its prejudicial effect outweighs its probative value.

The defendant appealed a Master's order granting the plaintiff leave to amend its Statement of Claim in an action for negligence and breach of contract arising from a sewage system upgrade project.

The defendant argued the amendments raised new, time-barred causes of action.

The Divisional Court dismissed the appeal, upholding the Master's findings that most amendments merely particularized the existing claims based on the same factual matrix.

For the amendments that did raise a new cause of action, the court agreed with the Master that the issue of discoverability was genuinely in dispute and should be resolved at trial, allowing the amendments subject to a limitation defence.

The appellant purchased kayaks from the respondent, which were delivered late and allegedly defective.

The trial judge found that a contract existed because the appellant accepted and used the kayaks, but awarded a reduction in the purchase price due to defects, resulting in a judgment for the respondent.

On appeal, the appellant argued the trial judge erred in his findings of fact regarding the contract and the quantum of economic loss.

The Divisional Court dismissed the appeal, holding that the trial judge's findings were supported by the evidence and there was no palpable and overriding error.

The Attorney General brought a motion to consolidate a Superior Court constitutional application and a Divisional Court appeal regarding the mandatory revocation of a pharmacist's license for professional misconduct.

The Attorney General also sought to remit the constitutional challenge to the Discipline Committee.

The court dismissed the motion, finding that the Divisional Court lacks jurisdiction to hear the constitutional application at first instance.

The court also declined to remit the matter to the Discipline Committee, holding that exceptional circumstances justified early judicial intervention given the Committee's lack of expertise and inability to issue a general declaration of invalidity.

The plaintiff appealed a Master's decision refusing to set aside the Registrar's second dismissal of the action for delay.

The Master had applied the Reid factors and found the plaintiff failed to explain the delay or rebut the presumption of prejudice.

The Divisional Court allowed the appeal, finding the Master erred in law by failing to balance the delay against the overarching principle in Rule 1.04 that proceedings should be determined on their merits.

The court noted the defendant's counsel contributed to the circumstances leading to the second dismissal by failing to respond to a settlement offer as promised, and there was no evidence that a fair trial was no longer possible.

The appellant manufacturer appealed a Small Claims Court judgment awarding the respondent damages for defective roofing shingles.

The appellant argued the action was statute-barred under the Limitations Act, 2002.

The Divisional Court agreed, finding that the respondent knew or ought to have known the identity of the manufacturer more than two years before commencing the action, based on correspondence from his insurer and a product colour guide in his possession.

The appeal was allowed and the action dismissed.

The defendant dentist sought leave to appeal the dismissal of his motion for summary judgment, which was based on the expiry of the limitation period.

The plaintiff argued that although he initially discovered the claim for dental malpractice, the defendant's subsequent assurances that the work was competent and the problems were due to poor hygiene negated that discovery.

The Divisional Court dismissed the motion for leave to appeal, agreeing with the motions judge that a trial was necessary to fully appreciate whether the defendant's actions delayed the commencement of the limitation period.

The Ontario Securities Commission brought a motion for security for costs of an appeal filed by the appellants.

The appellants had previously been found to have perpetrated a fraud on investors and were ordered to pay investigation and hearing costs, which remained unpaid.

The court found good reason to believe the appeal was frivolous and vexatious, as the appellants had declined to participate in the merits hearing.

Furthermore, the court found the appellants no longer had assets in Ontario.

The motion was granted, and the appellants were ordered to post $20,000 as security for costs.

The appellant appealed a Small Claims Court judgment regarding a contract for the supply and installation of doors and windows.

The appellant had refused to pay the balance owing, claiming the products were not Energy Star rated and that damage was caused during installation.

The deputy judge awarded the respondent the balance owing but set off an amount for damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the deputy judge's factual findings that the products were Energy Star rated, despite missing stickers, and that the damages awarded were appropriate.

The appellant property owner appealed a Small Claims Court judgment finding it liable for injuries sustained by the respondent pedestrian who tripped over a double asphalt curb in a poorly lit parking lot.

The appellant argued the respondent was a trespasser who willingly assumed the risks of crossing the lot.

The Divisional Court dismissed the appeal, finding the trial judge made no palpable and overriding error in concluding that a single sign restricting unauthorized vehicles did not effectively bar pedestrians, and that the respondent had not willingly assumed the risks under the Occupiers' Liability Act.

Following the dismissal of the appellant's appeal, the court received written submissions on costs.

The parties presented correspondence indicating their agreement on a costs award of $500 to reimburse the self-represented respondent for her out-of-pocket expenses.

The court found the agreed amount reasonable and ordered the appellant to pay $500 in costs.