Civil Litigation - Defendant - ODC

The plaintiffs in two separate personal injury actions appealed interlocutory orders requiring them to undergo examinations by non-medical practitioners (a vocational assessor and a chiropractor).

The plaintiffs argued that section 105 of the Courts of Justice Act constitutes a complete code for such examinations, precluding orders for non-medical practitioners.

The Divisional Court held that section 105 does not completely occupy the field and that a Superior Court judge has inherent jurisdiction to order an examination by a non-medical practitioner where necessary to ensure trial fairness and justice.

Applying this test, the court dismissed the appeal in the Ziebenhaus action, finding the vocational assessment was necessary to meet the plaintiff's case.

However, the court allowed the appeal in the Jack action, finding the defendants failed to demonstrate that the functional abilities evaluation was necessary.

The appellant appealed a Small Claims Court decision dismissing his professional negligence claim against his former solicitors.

The appellant argued the trial judge made palpable and overriding factual errors, applied an incorrect standard of proof, and created a reasonable apprehension of bias through excessive interventions.

The Divisional Court dismissed the appeal, finding the factual findings were supported by evidence, the correct standard of proof was applied, and the trial judge's interventions were appropriate attempts to understand the evidence rather than evidence of bias.

The appellant's action was dismissed by a Deputy Judge at a Small Claims Court settlement conference.

The appellant brought a motion before a second Deputy Judge to set aside the dismissal, which was denied for lack of jurisdiction.

The appellant appealed to the Divisional Court.

The court held that the original dismissal was a final order, meaning the second Deputy Judge correctly concluded he had no jurisdiction to hear what was effectively an appeal.

The court also declined to grant an extension of time to appeal the original dismissal order due to the lengthy delay and lack of intention to appeal within the statutory period.

The moving parties sought leave to appeal a joint and several costs order of $247,566.14 made against them following the respondent's successful motion to appoint a receiver.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision to award costs jointly and severally, including against the individual moving party personally.

The court held that the motions judge properly exercised his discretion and that the stringent test for granting leave to appeal a costs order was not met.

The parties brought cross-appeals from orders of a Master in a long-standing construction dispute over failed heat pumps.

The defendants appealed the Master's refusal to allow them to amend their statement of defence to withdraw an admission that the personal defendants were partners, and the requirement to provide particulars for other amendments.

The plaintiff appealed the Master's order restricting its examination for discovery to a specific personal defendant, and sought leave to appeal the Master's costs award.

The Divisional Court dismissed the defendants' appeal, finding the Master correctly applied the test for withdrawing an admission.

The Court allowed the plaintiff's appeal, holding the Master lacked jurisdiction to restrict discovery without consent, and varied the costs award from $5,500 to $25,000 due to the Master's failure to provide reasons for drastically reducing the costs sought by both parties.

The applicant sought leave to appeal an order dismissing its motion to enforce a settlement agreement, and alternatively, leave to appeal the costs order.

The motion judge had found that there were material issues of fact regarding whether the applicant had sustained the alleged investment losses, which was a condition of the settlement.

The Divisional Court held there was no good reason to doubt the correctness of the motion judge's decision and no conflicting decisions on principle.

The application for leave to appeal both the substantive order and the costs order was dismissed.

The defendants sought leave to appeal a decision granting the plaintiffs leave to pursue claims under Part XXIII.1 of the Securities Act and certifying the action as a class proceeding.

The plaintiffs alleged the corporate defendant misrepresented its equity market risk by failing to disclose its decision to abandon hedging and reinsurance of guaranteed products.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's conclusions that the plaintiffs had a reasonable possibility of success at trial and that the common law misrepresentation claims were suitable for certification alongside the statutory claims.

The defendants appealed an interlocutory order dismissing their motion to set aside an ex parte order granting a certificate of pending litigation (CPL) to the plaintiff.

The Divisional Court allowed the appeal, finding that the motion judge erred in law by applying the wrong test for materiality regarding the plaintiff's failure to make full and fair disclosure on the ex parte motion.

The court held that under Rule 39.01(6), failure to disclose material facts—defined as facts that might reasonably affect the outcome of the motion—is in itself sufficient ground to set aside the order.

The appeal was allowed and the CPL was vacated.

The Divisional Court determined the costs of a summary judgment motion, an application for leave to appeal, and the appeal itself, following the dismissal of the defendants' appeal.

The court upheld the motion judge's award of $18,000 for the summary judgment motion.

The court awarded the plaintiff partial indemnity costs of $10,000 plus HST for the leave to appeal application and $22,500 all-inclusive for the appeal, rejecting the plaintiff's request for substantial indemnity costs.

Following the dismissal of their judicial review application, the applicants argued they should not pay costs because the application was public interest litigation.

The Divisional Court rejected this argument, finding the application was motivated by the practitioner applicants' commercial interests.

The court awarded costs of $30,000 to the Transitional Council and $15,000 to the Minister of Health and Long-Term Care, finding the Transitional Council's initial claim of up to $125,297.56 excessive.

The court ordered all applicants, including patient applicants, to be jointly and severally liable for the costs.

The defendant appealed a trial judgment finding him liable for defamation and awarding the plaintiff $20,000 in damages.

The trial judge had held that while the defendant's statements in a union charge document were protected by qualified privilege, the privilege was defeated by malice.

On appeal, the Divisional Court found that the trial judge made a palpable and overriding error in finding malice.

The evidence demonstrated the defendant had an honest belief in the truth of the statements, and his conduct did not amount to recklessness or a personal vendetta.

The appeal was allowed and the defamation claim was dismissed.

The defendant appealed the trial judge's decision to grant a non-suit dismissing its third-party claim against the plaintiff's son.

The plaintiff, a 92-year-old woman, was injured when she slipped on ice outside her apartment building after her son dropped her off.

The defendant argued the son owed a duty of care based on his past habit of assisting her.

The Divisional Court upheld the trial judge's finding that there was no factual foundation to impose a legal duty of care on the son, as the mother was an independent person capable of caring for herself, and voluntary past assistance does not create a legally binding duty.

The appellant appealed a Small Claims Court decision finding him liable for unjust enrichment for property management services provided by the respondent.

The appellant argued that the trial judge made palpable and overriding errors in fact-finding and credibility assessments, and erred in quantifying damages without expert evidence on fair market value.

The Divisional Court dismissed the appeal, finding ample evidence that the appellant continued to demand services and that the trial judge's credibility findings and damages assessment based on historical billing were reasonable.

The applicants sought judicial review of an interlocutory order from a Small Claims Court Deputy Judge, who had dismissed their motion to strike the respondent's claim for lack of jurisdiction and expiry of a limitation period.

The Divisional Court dismissed the application, holding that judicial review of interlocutory Small Claims Court decisions is only available in narrow circumstances, such as when the court acts without jurisdiction.

The court found that the Deputy Judge's provisional determination of jurisdiction based on allegations of theft did not warrant judicial review, as the Small Claims Court generally has jurisdiction to determine its own jurisdiction.

Following the dismissal of the applicants' application for judicial review, the court determined the issue of costs.

The applicants argued no costs should be awarded as the proceeding was of broader public interest.

The court rejected this argument, finding the issue was entirely personal to the applicants' positions as cottage owners.

The court awarded the respondent costs of $12,500, reducing the requested amount of $16,565.50 to reflect the respondent's lack of success on a jurisdictional issue raised during the hearing.

The applicant physician brought an urgent motion seeking declarations that the respondent hospital's Board of Directors was functus officio and reasonably apprehended of bias regarding any motion to lift an automatic stay of its decision to revoke his staff privileges.

The Divisional Court dismissed the motion, finding it premature.

The court held that the Board was not functus officio because it had not previously adjudicated the issue of lifting the stay, as the applicability of the stay was only recently determined.

Furthermore, the court found no reasonable apprehension of bias merely because the Board had previously revoked the privileges or was the respondent in the statutory appeal.

Costs were awarded to the respondent on a partial indemnity scale, with the court cautioning counsel against personalizing criticism of opposing counsel.

The appellant appealed a Small Claims Court decision finding it negligent and jointly and severally liable with a co-defendant for damages related to truck engine repairs.

The Divisional Court allowed the appeal, finding that the trial judge erred by permitting the respondent to advance a negligence claim on the first day of trial without notice, and by finding negligence without evidence establishing the standard of care or how the appellant breached it.

The court also found errors in the trial judge's assessment of damages and the imposition of joint and several liability.

The judgment against the appellant was set aside and the claims against it were dismissed.

The self-represented plaintiff sought leave to appeal an interlocutory order requiring him to pay $30,000 into court as security for costs.

The underlying action involved allegations of false arrest and excessive force by mall security officers.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision because the motion judge failed to explicitly find that the action was frivolous and vexatious, did not review the evidentiary record, and improperly relied on findings from a separate summary judgment motion involving different defendants.

The court also found the issue raised matters of public importance regarding access to justice.

The appellants, former directors of a condominium corporation, appealed two costs decisions that ordered them to personally pay costs for an unsuccessful injunction motion and an administration application they initiated on behalf of the corporation.

The Divisional Court allowed the appeal regarding the injunction motion, finding the motion judge erred by failing to apply the 'man of straw' test for awarding costs against non-parties.

However, the court dismissed the appeal regarding the administration application, finding the application judge correctly applied the test, properly found the directors acted in bad faith, and afforded procedural fairness.

The costs for the injunction motion were redirected to the condominium corporation.

The applicant insurance company sought judicial review of a Financial Services Commission of Ontario (FSCO) decision regarding the applicable interest rate on overdue Statutory Accident Benefits.

The central issue was the interpretation of transitional provisions between the old and new Statutory Accident Benefits Schedules for amounts becoming overdue after September 1, 2010.

The Divisional Court determined the standard of review was reasonableness, as the Tribunal was interpreting its home statute.

The Court dismissed the application, finding the Tribunal reasonably concluded that the 2% interest rate under the old regulation continued to apply to amounts that became overdue after September 1, 2010.