Civil Litigation - Defendant - ODC

The plaintiff sought leave to appeal a $21,270 costs order made by a Small Claims Court Deputy Judge following a 12-day trial over a $1,500 dispute regarding condominium records.

The defendant argued the Divisional Court lacked jurisdiction because the amount in dispute was under the $2,500 threshold in section 31 of the Courts of Justice Act.

The court held that section 33 allows an appeal as to costs with leave, regardless of the amount in dispute.

However, leave to appeal was denied because the Deputy Judge properly considered the principle of proportionality and the plaintiff's unreasonable behaviour when awarding costs.

The appellant appealed a Master's order that dismissed its action for delay under Rule 11.03 of the Rules of Civil Procedure.

The Master had found that the appellant intentionally delayed obtaining an order to continue following a corporate reorganization to insulate its assets from the respondent's counterclaim.

The Divisional Court allowed the appeal in part, finding that the Master misapprehended the evidence and erred in applying the test for dismissal.

The Court held that a dismissal under Rule 11.03 requires a showing of prejudice related to the failure to obtain the order to continue, which the respondent failed to demonstrate.

The dismissal of the action was set aside, though the Master's refusal to vary the flawed 2015 order to continue was upheld, with leave for the appellant to requisition a fresh order.

The respondent fell while stepping onto a deck at the appellants' home and sued for negligence.

The trial judge found the appellants 65% liable under the Occupiers' Liability Act because the deck step was higher than standard, and also noted a breach of the Dog Owners' Liability Act.

On appeal, the Divisional Court set aside the judgment, finding the trial judge erred by failing to analyze whether the deck height created an objectively unreasonable risk of harm and by failing to make any finding that the deck height actually caused the fall.

The appeal was allowed and the respondent's claim was dismissed.

The defendant in a civil sexual assault action sought leave to appeal an order dismissing his motion for a declaration that the deemed undertaking rule did not apply to the disclosure of discovery evidence to his criminal counsel for impeachment purposes.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order requiring pre-approval to use the impeachment exception, and noting the issue is of sufficient importance to the profession and administration of justice.

The plaintiffs appealed a certification order that denied certification of claims for unlawful means conspiracy and claims on behalf of 'Umbrella Purchasers' in a class action alleging a global price-fixing conspiracy for lithium-ion batteries.

The Divisional Court allowed the appeal regarding the unlawful means conspiracy claim, finding it was bound by a recent Court of Appeal decision.

However, the court dismissed the appeal regarding the Umbrella Purchasers, concluding that allowing claims by purchasers who bought from non-defendant manufacturers would expose the defendants to indeterminate liability for economic loss.

The defendants moved for leave to appeal a decision dismissing their motion to dismiss the plaintiffs' action.

The underlying motion argued that the plaintiffs' notice of action was a nullity and that the statement of claim was delivered after the two-year limitation period expired.

The motions judge had found the notice of action sufficient and relied on the Rules of Civil Procedure to cure any defects.

The court granted leave to appeal, finding conflicting decisions regarding the required level of detail in a notice of action and good reason to doubt the correctness of the underlying decision.

The appellant collision centre appealed a Small Claims Court judgment awarding the respondent damages for unauthorized vehicle repairs.

The appellant argued the trial judge erred by denying an adjournment and by granting judgment on a cause of action not pleaded.

The Divisional Court dismissed the appeal, finding the trial judge reasonably exercised her discretion regarding the adjournment and correctly determined that the issue of unauthorized repairs was adequately raised in the pleadings.

The appellant appealed a Small Claims Court decision dismissing his claim for unpaid immigration consulting services.

At trial, the appellant's paralegal closed their case without calling the appellant to testify.

After the respondent testified, the appellant attempted to take the stand to give evidence-in-chief, which the trial judge refused as an improper splitting of the case.

The Divisional Court found no reversible error in the trial judge's management of the trial process and dismissed the appeal.

The appellant municipality appealed a Small Claims Court decision finding it responsible for the cost of thawing a frozen waterline on its side of the property line.

The municipality had historically thawed such blockages without charge but attempted to discontinue the practice via an un-enacted policy.

The Divisional Court dismissed the appeal, holding that the municipality's due diligence obligation included bearing this cost and that it was subject to an estoppel preventing it from discontinuing the service without enacting specific provisions to the contrary.

The appellant appealed a Small Claims Court decision dismissing his action against his insurer for breach of contract and conversion.

The appellant claimed $25,000 in damages, including for psychological distress, after the insurer automatically renewed his motorcycle insurance policy and withdrew a premium payment, which was promptly returned upon cancellation.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the policy remained in force until expressly cancelled, and that the claimed damages were not reasonably foreseeable.

The appellant appealed a Small Claims Court decision dismissing his action for nuisance, negligence, and trespass against his neighbour.

The dispute arose when the respondent cut down boundary cedars to build a fence for the safety of a special needs child, after the appellant unreasonably refused consent.

The Divisional Court upheld the trial judge's finding that the overgrown cedars constituted a nuisance, substantially and unreasonably interfering with the respondent's use of his property.

The court confirmed that where a boundary tree is a nuisance, the Forestry Act does not prevent a co-owner from abating the nuisance through self-help if the other owner unreasonably withholds consent.

The appeal was dismissed.

The plaintiffs sought leave to appeal a motion judge's decision that refused to strike out several paragraphs of the defendant's statement of defence.

The underlying action involved the recognition and enforcement of a $9.5 billion Ecuadorian judgment.

The defendant pleaded defences of fraud, public policy, and lack of natural justice, alleging the foreign judgment was ghostwritten and obtained through bribery.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the pleaded defences were recognized in law and not plainly and obviously bound to fail.

The appellant, Econo Petroleum Inc., appealed a Small Claims Court decision ordering it to pay unpaid commissions to 2081430 Ontario Inc. and to return a security deposit to Vladimir Gorbatchevski.

The Divisional Court dismissed the appeal, finding that the trial judge made no palpable and overriding errors in concluding that an informal agreement existed for the payment of commissions, that no set-off damages were owed for lack of notice of termination, and that Econo was responsible for returning the security deposit.

Costs were awarded to the respondents.

The moving parties sought leave to appeal a Case Management Judge's interlocutory order refusing to recuse herself for alleged bias, as well as the order requiring them to pay $32,681.83 in costs on a full indemnity scale for the unsuccessful recusal motion.

The court dismissed the motion for leave to appeal, finding no conflicting decisions, no broad significance to the recusal issue, and no error in principle in the discretionary costs award.

The moving parties were ordered to pay $5,000 in costs for the leave motion.

The appellant employer appealed a Small Claims Court decision finding it had constructively dismissed the respondent employee.

The sole ground of appeal was that the trial judge failed to address the issue of mitigation of damages in his reasons, as the employee delayed starting new employment for several months.

The Divisional Court dismissed the appeal, holding that while the trial judge's reasons were deficient on their face, the record clearly showed the employee acted reasonably in delaying his new employment based on legal advice regarding a potential injunction.

The court exercised its power under s. 134 of the Courts of Justice Act to find the employee had not failed to mitigate his damages.

The appellant, a commercial rabbit farmer, appealed a trial decision dismissing his counterclaim that contaminated feed supplied by the respondent caused mass mortality in his rabbit herd.

The trial judge had preferred the evidence of the respondent's expert over the appellant's expert regarding the sensitivity of rabbits to mycotoxins.

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

The plaintiff appealed an interlocutory order of a Master to the Divisional Court instead of a single judge of the Superior Court.

The defendant successfully moved to quash the appeal, and the plaintiff's motion to extend time to appeal was dismissed.

In this costs endorsement, the court awarded the defendant full indemnity costs for the motion to quash, noting the plaintiff pursued the wrong appellate route despite repeated warnings.

The court also awarded partial costs for the motion to extend time, fixing total costs at $7,497.49.

The Attorney General appealed a decision ordering the full forfeiture of $29,900 in seized cash under the Civil Remedies Act, 2001, despite the parties reaching a settlement to return $4,000 to the claimant.

The Divisional Court dismissed the appeal, holding that proceedings under the Act are in rem and affect the world at large, meaning the court cannot simply rubber-stamp a settlement.

Because the cash was found to be proceeds of unlawful activity and there was no evidence establishing the claimant as the legitimate owner, mandatory forfeiture of the entire amount was required under section 3(1) of the Act.

The appellants, commercial tenants, appealed a Small Claims Court judgment ordering them to pay rent arrears.

They argued the trial judge erred in finding no oral agreement to extend a temporary rent reduction, and failed to apply the doctrines of promissory estoppel and waiver based on the landlord's acceptance of reduced rent cheques.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding errors of fact in preferring the landlord's evidence, and that his factual findings properly foreclosed the application of promissory estoppel.

The applicant's application for leave to appeal to the Divisional Court was previously dismissed.

The respondent sought costs of $9,698.28 on a partial indemnity basis, arguing the applicant raised numerous complicated grounds of appeal.

The applicant argued for a lower amount based on proportionality and a purported standard maximum of $3,500 for leave applications.

The court rejected the standard maximum, finding the application was more complex than a standard leave application due to the 15 to 17 grounds of appeal raised.

Costs were fixed at $6,500 inclusive of HST and disbursements.