Civil Litigation - Defendant - ODC

The plaintiffs sued the defendant lawyers for negligent misrepresentation, alleging they relied on the lawyers' confirmation that a financing condition had been met.

During discovery, the plaintiffs refused to answer questions about the legal advice they received from their own counsel regarding the alleged confirmation.

The motion judge ordered the plaintiffs to answer the questions, finding they had waived solicitor-client privilege by placing their state of mind and reliance in issue.

The Divisional Court dismissed the plaintiffs' appeal, holding that fairness and consistency required disclosure of the legal advice to allow the defendants to adequately defend against the reliance claim.

The appellant, a listing real estate broker, appealed a Small Claims Court decision finding he was unjustly enriched and ordering him to share a commission with the respondent, a co-operating brokerage.

The respondent's agent had introduced the buyers to the property but failed to obtain a signed Buyer Representation Agreement.

The buyers subsequently approached the appellant directly, stated they were unrepresented, and signed a Buyer Representation Agreement with him.

The Divisional Court allowed the appeal, finding the appellant performed the work of a co-operating broker and had a valid juristic reason to retain the full commission.

The trial judgment was set aside and the action dismissed.

The appellant appealed a Small Claims Court judgment ordering it to pay an unpaid invoice of $11,523 to the respondent.

The parties had a distribution agreement that the respondent terminated after the appellant refused to pay the invoice.

The Divisional Court found no error in the trial judge's interpretation of the agreement, which required payment for products already delivered regardless of termination.

The court also upheld the dismissal of the appellant's counter-claim, finding no palpable and overriding error in the trial judge's conclusion that the appellant failed to prove its damages.

The appeal was dismissed.

The appellant franchisee appealed a trial decision dismissing its action against the respondent franchisor for alleged breaches of disclosure obligations under the Arthur Wishart Act.

The trial judge found no material change in the franchisor's business operations between the original 1996 agreement and the 2001 renewal, and concluded the appellant failed to mitigate damages by abandoning the franchise.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or assessment of damages.

The appellant appealed a Small Claims Court decision dismissing her negligence claim against her neighbour for damages caused by a dryer fire.

The trial judge found that the cause of the fire was undetermined based on expert evidence, and the appellant failed to prove the respondent was negligent in operating the dryer.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the facts and evidence.

The appellant appealed a Master's order dismissing his action for repeatedly failing to comply with court orders requiring him to answer undertakings.

The appellant argued he should have been given another 'last chance' to comply, especially as a self-represented litigant.

The Divisional Court dismissed the appeal, finding the appellant had already been given a clear last chance order and had willfully disregarded it by demanding inappropriate conditions before he would comply.

The court affirmed that repeated failures to comply with procedural orders justify dismissal.

Following the dismissal of an appeal from the Small Claims Court regarding a claim for $4,931.92 in unpaid rehabilitation fees, the successful respondent sought costs on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that a letter asking the appellant to abandon the appeal on humanitarian grounds did not constitute an offer to settle.

Applying the principle of proportionality under Rule 1.04(1.1) of the Rules of Civil Procedure, the court fixed the respondent's partial indemnity costs at $5,000 all-inclusive, an amount roughly equal to the original claim.

The appellant appealed a Small Claims Court decision dismissing her claim for $13,000 based on an alleged oral agreement.

The appeal was based on the sufficiency of the trial judge's reasons.

The Divisional Court found that the trial judge's brief reasons were merely statements of conclusion without analysis of the credibility issues or the evidence, including transcripts of recorded telephone conversations.

The appeal was allowed and a new trial was ordered.

The appellant appealed a Small Claims Court decision dismissing its claim for damages for breach of contract regarding a water filtration system rental.

The trial judge had found that the five-year term was not explained to the respondent, the system was defective, and the appellant breached the payment terms.

The Divisional Court allowed the appeal, finding the trial judge made palpable and overriding errors by ignoring evidence that the term was in the contract and explained, ignoring evidence that the defect was fixed, and mischaracterizing an accounting error as a fundamental breach.

Judgment was entered for the appellant.

The appellant moved for a stay pending appeal of a Small Claims Court order that refused to set aside a judgment made after she failed to attend trial.

The appellant also sought to stay the enforcement of a writ of seizure and sale.

The Divisional Court dismissed the motion, finding that the appellant failed to meet the first branch of the RJR-MacDonald test because there was no serious issue to be decided.

The appellant had not complied with Rule 17(5) of the Small Claims Court Rules, which requires a motion to set aside a judgment to be brought within 30 days of becoming aware of it.

Both parties brought motions before the Divisional Court.

The defendant's representative sought leave to represent the corporate defendant, which was granted as he had been representing the Society throughout the proceedings.

The plaintiff sought leave to correct the identity of the corporate defendant due to a misnomer.

The court granted the plaintiff's motion, finding it was a simple misnomer, the defendant had not been misled, and there was no prejudice to the defendant.

No costs were awarded as success was divided.

The appellants appealed an order granting the Ottawa Police Association a conditional representation order under Rule 12.08 of the Rules of Civil Procedure.

The underlying action involved 74 police officers who transferred from the OPP to the Ottawa Police Services Board and alleged negligent misrepresentation regarding their pension transfers.

The Divisional Court dismissed the appeal, finding that Rule 12.08 does not require an action to benefit all members of an association, nor is it limited to collective actions.

The court upheld the motion judge's findings on common issues and preferable procedure, confirming that a conditional order to substitute an appropriate representative plaintiff was permissible.

The appellants appealed an interlocutory order requiring the appellant corporation to pay the respondents' interim legal fees and disbursements in an oppression remedy application pursuant to s. 249(4) of the Business Corporations Act.

The Divisional Court upheld the motions judge's decision to order payment of unpaid and future accounts at face value without an approval process, finding no palpable and overriding error.

However, the court allowed the appeal in part, finding that the motions judge erred in ordering the reimbursement of accounts already paid by the respondents, as there was no evidence that failing to reimburse those specific amounts would preclude them from pursuing their claims.

The applicants sought to depart from the normal rule that costs follow the event after their application for judicial review of a Compensation Fund Committee decision was dismissed.

They argued that they had already suffered financial loss due to a lawyer's misappropriation, that the case involved a novel public interest issue, and that awarding costs would run contrary to the purpose of the Compensation Fund.

The Divisional Court rejected these arguments, finding the issues were not novel and that the applicants chose to pursue the judicial review knowing the costs risks.

The court awarded partial indemnity costs of $25,000 to the respondent Law Society.

The plaintiff appealed the dismissal of its motion to certify a class action against the defendant, which manages Ontario's electronic land registry system.

The proposed class action alleged that the defendant's database constituted copyright infringement of plans of survey.

On appeal, the plaintiff recast its case by revising the class definition and common issues.

The Divisional Court allowed the appeal, finding that the plaintiff could recast its case absent non-compensable prejudice to the defendant.

The court held that the motion judge erred in requiring evidence that two or more persons were desirous of pursuing the claim to satisfy the identifiable class criterion.

The revised class definition and common issues met the certification criteria under the Class Proceedings Act, 1992.

The defendants sought costs on a partial indemnity scale following the dismissal of the plaintiff's motion for leave to appeal.

The plaintiff argued that he should be awarded costs or that no costs should be ordered.

The court found no reason to depart from the general rule that costs follow the event, noting that the plaintiff had initially sought the very adjournment that the motion judge ultimately granted.

Costs were awarded to the defendants in the amount of $6,122.73.

The appellant appealed a Small Claims Court decision dismissing its action for breach of contract against the respondent paralegal.

The appellant claimed the parties had reached a verbal settlement and release, which the respondent allegedly breached by initiating a claim with the CRA for insurable and pensionable earnings.

The Divisional Court found no palpable and overriding error in the trial judge's conclusion that there was no binding verbal agreement and release.

The appeal was dismissed.

The appellant moved before the Divisional Court to review an order dismissing her motion to waive the fee for a transcript required for her Small Claims Court appeal.

The appellant alternatively sought to proceed without a transcript or have the respondent pay for it.

The court upheld the motion judge's finding that there is no statutory authority to waive transcript fees under the Administration of Justice Act.

The court also held that a transcript was necessary because the appeal was fact-driven, and declined to order the respondent to pay for it as the case did not meet the test for interim costs.

The motion was dismissed with costs.

The self-represented appellant brought a motion for an extension of time to perfect an appeal of a small claims court settlement agreement.

The appellant argued she did not understand the agreement due to a language barrier and lack of an interpreter.

Despite a substantial delay of up to one year, primarily caused by her former counsel, the court found her explanation reasonable.

The court granted the extension, noting the serious consideration required when a self-represented person enters an agreement without a needed interpreter.

The defendant, the Attorney General of Canada, sought leave to appeal a decision certifying a class action and dismissing a motion to strike the amended statement of claim.

The class action was brought on behalf of Aboriginal children removed from their homes and placed in non-Aboriginal homes in Ontario between 1965 and 1984.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the certification judge's reliance on a 1965 Agreement that was not pleaded as the basis for the alleged fiduciary duty and duty of care, and noting the matter was of sufficient importance.