Civil Litigation - Defendant - ODC

The defendants sought leave to appeal an order dismissing their motions to strike portions of the plaintiff's statements of claim in two related defamation actions.

The primary issue was whether the plaintiff could salvage a defamation claim regarding radio broadcasts by commencing a second action after failing to provide the required Section 5 notice under the Libel and Slander Act prior to the first action.

The court granted leave to appeal the refusal to strike the paragraphs in the second action relating to the radio broadcasts, finding good reason to doubt the correctness of the motion judge's decision and noting the issue's importance to the administration of justice.

Leave to appeal was denied on the other grounds.

The defendant, Her Majesty the Queen in Right of Ontario, sought leave to appeal an order dismissing its motion to strike the plaintiffs' claim.

The plaintiffs alleged the provincial government was negligent in failing to prevent the spread of West Nile Virus.

The Divisional Court granted leave to appeal, finding conflicting decisions regarding the threshold test for establishing a duty of care for public authorities and good reason to doubt the correctness of the motion judge's order.

A stay of the order was also granted pending the appeal.

The defendants brought a motion for leave to appeal an order certifying a class action.

The certification judge had certified the proceeding on the basis that 'waiver of tort' constituted an independent cause of action.

The Divisional Court found good reason to doubt the correctness of this conclusion, noting conflicting decisions and academic commentary suggesting waiver of tort is merely a choice of remedy rather than a standalone cause of action.

Leave to appeal was granted.

The appellants appealed a jury verdict and the trial judge's rulings on evidence and costs.

The Divisional Court dismissed the appeal, finding no merit in the appellants' objections to the jury questions, which were not raised at trial.

The court also held that the jury's findings were not perverse and that the trial judge made no error in excluding a late affidavit or admitting a signed statement and surveillance tapes.

The appeal was dismissed with costs fixed at $3,500 on a partial indemnity basis.

The appellants appealed a decision refusing to set aside a noting of default and a default judgment of over $2.5 million in a construction lien action.

The appellants argued the Registrar lacked jurisdiction to sign the default judgment because the claim was not for a liquidated demand.

The Divisional Court dismissed the appeal, finding the claim was for a liquidated demand supported by detailed invoices and a signed change order.

The court also upheld the motions judge's finding that the appellants had no arguable defence on the merits.

The appellant insurer appealed an order requiring it to produce its underwriting file for discovery in an insurance coverage dispute.

The Divisional Court found that while the motion judge applied the wrong test ('could be relevant' instead of 'semblance of relevance'), the result was correct.

Given the unusual circumstances involving allegations of knowledge possessed by the insured and insurer at the time the policy was issued, the entire underwriting file had a semblance of relevance and was properly ordered produced.

The appeal was dismissed.

The plaintiff brought a motion for leave to appeal an order requiring it to pay $175,000 into court as security for costs.

The underlying action involved a claim for damages for breach of a franchise agreement.

The motions judge had found that the plaintiff failed to establish impecuniosity.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order and that the issue of whether the merits of the case should be considered even if impecuniosity is not established transcends the interests of the parties and involves conflicting decisions.

The plaintiff sought leave to appeal a costs order made after a summary judgment motion.

The motions judge had found the defendants' summary judgment motion reasonable but unsuccessful, and reserved costs to the trial judge.

The plaintiff argued this conflicted with case law requiring costs to be fixed on a partial indemnity basis and payable forthwith under Rule 20.06(1).

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, as the cited cases merely reflected the exercise of judicial discretion regarding costs.

The applicants, chartered accountants charged with professional misconduct, brought a motion for review of an order dismissing their request to compel the respondent's Professional Conduct Committee to file a record of proceedings under section 10 of the Judicial Review Procedure Act.

The Divisional Court dismissed the motion, holding that the committee's power to investigate and charge is not a 'statutory power of decision' as defined in the Act, and therefore section 10 does not apply.

The appellant, Inco Limited, appealed a decision of the motion judge setting aside a Master's order that had struck the respondents' reply affidavits with leave to amend.

The underlying motion for judgment brought by the appellant was based on statutory authority, the Limitations Act, and accord and satisfaction.

The Divisional Court dismissed the appeal, finding that the motion judge was not clearly wrong in concluding that the judge hearing the motion for judgment should deal with any defects in the affidavit material, rather than having a Master review them in advance.

Costs of the proceedings to date were fixed at $45,000 on a partial indemnity basis payable to the respondents.

Following the disposition of several appeals, the court determined the quantum of costs to be awarded to the successful municipal parties.

The court applied the criteria under Rule 57.01, considering the complexity of the proceedings and the amounts at stake.

Costs were awarded on a partial indemnity basis to the City of Mississauga, the City of Burlington, the Region of Halton, and Peel Region, with some reductions made to the amounts claimed to ensure they were fair and reasonable.

The City of Toronto appealed an Ontario Municipal Board decision awarding a doctor $81,850 for injurious affection caused by subway construction near his leased offices.

The doctor cross-appealed the quantum of damages, arguing the Board erred in reducing damages by 50%.

The Divisional Court dismissed both the appeal and cross-appeal, finding no error in principle in the Board's assessment of reasonableness or damages.

The applicant, a university student, sought judicial review of the university president's decision to suspend him for three years for participating in unauthorized demonstrations.

The respondents brought a motion to quash the application, arguing that a newly scheduled university discipline tribunal hearing provided an adequate alternative remedy.

The applicant brought a cross-motion to stay the tribunal hearing pending the judicial review.

The court dismissed the motion to quash, finding the tribunal was not an adequate alternative remedy due to jurisdictional questions and a reasonable apprehension of bias, as the only appeal would be to the president herself.

The court granted the cross-motion to stay the tribunal hearing, applying the RJR-Macdonald test for interlocutory injunctions.

Following the dismissal of the plaintiff's appeal from the refusal to certify a class action, the parties could not agree on costs.

The plaintiff argued for a no-costs or reduced-costs order based on impecuniosity, but the court noted the plaintiff was funded by an environmental organization.

The court found the defendant's bill of costs reasonable given the massive size of the potential claim ($750 million) and fixed costs at $60,149.08 payable forthwith.

The plaintiffs brought an action against the provincial government alleging that a child's death in a hospital emergency department was caused by government funding cuts and restructuring decisions.

The plaintiffs claimed negligence, abuse of public office, and breach of fiduciary duty.

The government appealed a motions judge's refusal to strike these claims.

The Divisional Court allowed the appeal and struck the statement of claim, finding that the government owed no private law duty of care to the plaintiffs, the funding decisions were protected policy decisions, and the elements of abuse of public office and breach of fiduciary duty were not properly pleaded.

Following the dismissal of the plaintiff's application for leave to appeal an order for security for costs, the parties could not agree on costs.

The respondent sought costs on a substantial indemnity basis in the amount of $18,788.66.

The court found the amount claimed to be excessive and declined to award substantial indemnity costs.

Costs were fixed on a partial indemnity basis at $5,000 plus disbursements and GST.

The appellant appealed two orders of a Master dismissing its action and ordering payment out of court.

The action, which was over seven years old, had been transferred to Case Management after years of dormancy.

The Master found the appellant had repeatedly breached orders regarding security for costs, delivery of a release, and provision of damages calculations and documentation.

The Divisional Court held that the Master did not err in principle or in the exercise of his discretion under Rules 60.12 and 77.10(7) to dismiss the action.

The appeal was dismissed with costs to the respondent on a partial indemnity scale.

The appellant appealed the dismissal of his motion to certify a class proceeding against Inco Limited and others for environmental contamination in Port Colborne, as well as the subsequent costs order.

On appeal, the appellant narrowed the claims to real property devaluation, abandoning health impairment claims.

The Divisional Court upheld the motion judge's findings that the proposed class definition was arbitrary, individual issues would overwhelm common issues, and a class proceeding was not the preferable procedure.

The court also upheld the costs award of $184,332.14 against the appellant, finding no error in the motion judge's application of costs principles under the Class Proceedings Act and the Courts of Justice Act.

The plaintiffs appealed a master's order removing their solicitors of record due to a conflict of interest.

The defendants argued that a U.S. counsel listed on the plaintiffs' law firm's letterhead had previously represented one of the defendants, creating a conflict.

The Divisional Court allowed the appeal, finding that the U.S. counsel was not a member of the firm, but merely had a referral arrangement.

Therefore, there was no solicitor-client relationship between the firm and the defendant, no presumption of shared confidences, and no disqualifying conflict of interest.

Following the dismissal of an application for judicial review as premature, the court considered written submissions on costs.

The self-represented applicant argued that costs should be awarded against the successful respondent due to alleged improper conduct in its prosecution of her.

The court found that these allegations were matters still before the Law Society Committee and it would be premature to consider them.

Costs were awarded to the respondent on a partial indemnity scale, fixed at $1,500.