Civil Litigation - Defendant - ODC

The appellant general contractor appealed from summary judgments granted to two sub-subcontractors in a consolidated construction lien action.

The appellant argued the motion judge erred by granting judgment without evidence of the value of the work done by the subcontractor, misinterpreting the holdback provisions of the Construction Lien Act, and improperly placing the evidentiary burden on the appellant to establish the quantum of its liability.

The Divisional Court dismissed the appeal, finding that the liens were not restricted to the basic holdback and that the appellant failed to provide evidence of the amount it owed to the subcontractor, which was a fact within its knowledge.

The appellants appealed a Small Claims Court judgment finding them liable for selling a defective used tractor to the respondent.

At trial, the deputy judge relied heavily on an unsworn, unsigned letter from a mechanic who did not testify, to conclude the tractor was unsafe.

On appeal, the Divisional Court held that the trial judge erred in law by accepting the hearsay letter for the truth of its contents without affording the appellants the opportunity to cross-examine the author.

The appeal was allowed and a new trial was ordered.

The appellant employer appealed a Small Claims Court judgment awarding the respondent employee $25,000 for breach of a fixed-term employment contract.

The employee was hired for a one-year term to cover a maternity leave but was terminated after five months due to a shortage of work.

The employer argued the trial judge erred by inferring the contract guaranteed full-time hours, as the written agreement was silent on hours.

The Divisional Court dismissed the appeal, finding ample evidence to support the trial judge's conclusion that the parties objectively intended a full-time position, and no palpable and overriding error in the damages calculation.

The applicant sought judicial review of notices of trespass issued by the respondent school boards.

The application was dismissed for delay, and the respondents sought their costs.

The court found no reason to depart from the usual rule that the successful parties are entitled to costs on a partial indemnity basis.

The applicant was ordered to pay fixed costs of $5,611.52 to one board and $1,138.48 to the other.

The Divisional Court issued an endorsement to correct an accidental slip in its previous reasons for judgment dismissing the applicant's application.

The court amended paragraph 34 of the reasons pursuant to Rule 59.06(1) of the Rules of Civil Procedure to accurately reflect that the agreement as to costs was between the applicant and the University of Toronto, not the union.

The applicant was ordered to pay agreed costs of $8,000 to the University.

The applicant sought judicial review of three Small Claims Court orders arising from a default judgment in an aborted real estate transaction.

The Divisional Court dismissed the application, finding no jurisdictional error or breach of procedural fairness by the deputy judges.

The court noted that the applicant was improperly attempting to use judicial review to circumvent the statutory appeal process under the Courts of Justice Act.

In the context of a family law dispute, moving non-parties sought leave to appeal an interlocutory order refusing to release a Ferrari from impound.

They brought a motion to strike portions of the respondent's factum and casebook, arguing they relied on facts without evidence.

The court dismissed the motion to strike, finding it would unnecessarily delay the leave to appeal hearing, and instead permitted the moving non-parties to file a reply factum outlining their objections.

The appellant contractor appealed a motion judge's order vacating its construction lien upon the respondent owner posting security in an amount significantly less than the lien claim.

The appellant argued the motion judge erred by resolving complex factual issues regarding unapproved change orders and an extended duration claim on a summary motion under s. 44(2) of the Construction Lien Act.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the law by reducing security only where the evidence failed to establish a reasonable basis for the amounts claimed, though it varied the order to correct a conceded mathematical error.

The appellant appealed a Small Claims Court decision transferring her application under the Repair and Storage Liens Act to Brampton.

She argued that because the Act requires an application format, the Small Claims Court Rules regarding venue for actions (Rule 6.01) should not apply, and the Rules of Civil Procedure should govern instead.

The Divisional Court dismissed the appeal, holding that Rule 6.01 applies by analogy pursuant to Rule 1.03(2), as the policy rationale favouring local resolution of small claims disputes applies equally to applications.

The court treated the matter as an application for judicial review to ensure an immediate resolution and ordered the appellant to pay $300 in costs.

The self-represented appellant brought a motion seeking to have her appeal deemed perfected without filing a full trial transcript, arguing financial hardship.

She also sought an order directing the Registrar to issue a Certificate of Stay regarding a costs award from the trial judgment, and costs for an abandoned motion.

The Divisional Court dismissed the motion, finding that the appellant's grounds of appeal required a review of all trial evidence, necessitating a full transcript.

The court also declined to order a Certificate of Stay as the respondent was not enforcing the costs award, and denied costs for the abandoned motion.

The defendant appealed a Small Claims Court judgment ordering it to pay $10,000 for damage to the plaintiff's recycling bins during snow removal operations.

The Divisional Court found that the trial judge made a palpable and overriding error by adopting the plaintiff's deductions rather than weighing the evidence and drawing his own reasonable inferences.

The appeal was allowed, the judgment was set aside, and a new trial was ordered.

The appellant bank appealed a Small Claims Court decision awarding the respondent $25,000 in damages for an allegedly improper power of sale.

The trial judge found the bank failed to provide proper notice under the Mortgages Act because it sent the notice of sale to the mortgaged property, knowing the mortgagors were out of the country.

The Divisional Court allowed the appeal, holding that under s. 33(1) of the Mortgages Act, a mortgagee is entitled to serve the notice of sale at the specific address provided for service in the mortgage document, regardless of whether the mortgagee knows the mortgagor is living elsewhere.

The trial judgment was set aside.

The respondent in a judicial review application moved to strike an affidavit delivered by the applicants.

The underlying application sought judicial review of a Human Rights Tribunal of Ontario decision finding sexual assault and harassment.

The applicants sought to introduce the affidavit of a forensic psychiatrist to argue the tribunal improperly relied on treating doctors' evidence to bolster the complainant's credibility.

The Divisional Court granted the motion to strike, holding that the proposed evidence was irrelevant to the legal issue of oath helping and did not meet the narrow test for admitting fresh evidence on judicial review.

The appellant appealed a Licence Appeal Tribunal decision dismissing her application for non-earner benefits.

The LAT had found her application void because she failed to elect between non-earner and income replacement benefits before commencing the proceeding, as required by section 35 of the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, finding no error of law in the LAT's determination that an election was required and that a dispute could not exist until the insurer had made a decision following that election.

The applicant sought judicial review of a Licence Appeal Tribunal decision which found her claim for attendant care and housekeeping benefits was statute-barred.

The applicant argued that the limitation period should not begin to run until she was found to be catastrophically impaired, relying on the doctrine of discoverability.

The Divisional Court dismissed the application, holding that the limitation period under the Statutory Accident Benefits Schedule is a 'hard' limitation period triggered by the insurer's clear and unequivocal refusal to pay the benefit, regardless of whether the claimant is aware they have a claim at that time.

The appellant appealed a Small Claims Court decision, arguing the judge erred in finding its liquidated damages clause was a penalty.

The Divisional Court dismissed the appeal, noting the key holding below was a factual finding based on credibility that the contract never came into force.

As the contract never commenced, the liquidated damages clause did not apply, rendering the penalty finding obiter.

The court declined to provide guidance on the law of penalties, noting the uncertainty arose from Small Claims Court judges finding the clause produced inequitable results on specific facts.

The appellant brought a motion to set aside the registrar's orders dismissing its Small Claims Court appeals for delay, and for an extension of time to appeal a single judge's order imposing conditions on the appeals.

The appellant had repeatedly failed to properly order trial transcripts or comply with court orders requiring security for costs and proof of transcript orders.

The Divisional Court dismissed the motion, finding the registrar had jurisdiction to dismiss the appeals when the appellant failed to comply with the conditions set by the single judge.

The request for an extension of time was dismissed as moot.

Following the dismissal of the appellant's appeal regarding an expired construction lien, the respondent sought costs of $30,470.28 on a substantial indemnity scale.

The court declined to award substantial indemnity costs, noting the respondent could have acted to mitigate prejudice from the appellant's delay.

The court also reduced the quantum, finding the time spent excessive for a narrow issue and rejecting a disbursement claim for computerized legal research that appeared to be a profit centre for counsel.

Costs were fixed at $15,000 on a partial indemnity scale.

The appellant appealed a Small Claims Court order that found the respondent had not breached a settlement agreement regarding a judgment debt.

The appellant argued the deputy judge lacked jurisdiction, unreasonably denied a mid-hearing adjournment request, and erred in finding no breach.

The Divisional Court dismissed the appeal, holding that the Small Claims Court has province-wide jurisdiction, the refusal of the adjournment was a proper exercise of discretion, and there was no error in the finding that the settlement agreement remained binding.

The appellant appealed a Small Claims Court decision dismissing his claim for breach of contract and granting the respondent banquet hall's counterclaim for unpaid cancellation fees.

The appellant argued the trial judge made factual errors and misapplied the law of mitigation by not requiring the respondent to prove it took active steps to re-book the hall.

The Divisional Court dismissed the appeal, finding any factual errors were inconsequential.

Applying the Supreme Court's decision in Southcott Estates, the court held that the onus of proving a failure to mitigate, including that a profitable substitute could have been found, rests entirely on the party alleging the failure.