Civil Litigation - Defendant - ODC

The appellant contracted with the respondent for the installation of a high-efficiency gas furnace and air-conditioning unit.

Dissatisfied with the location of the ductwork and other elements, the appellant refused to pay the balance owing.

The respondent successfully sued in Small Claims Court for the unpaid balance.

The appellant appealed to the Divisional Court.

The court dismissed the appeal, finding no substantial error by the trial judge, noting that the appellant had left the specific location of the materials to the professionals and the contract made no specific provision for it.

The self-represented plaintiff brought a motion for leave to appeal a decision striking out his statement of claim, which sought damages for alleged Charter violations.

The Divisional Court dismissed the motion, finding that the plaintiff failed to meet the mandatory test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, as he did not demonstrate conflicting decisions or good reason to doubt the correctness of the lower court's order.

The plaintiff brought a motion for leave to appeal an interlocutory order that allowed the co-defendants to attend each other's examinations for discovery.

The plaintiff argued that the defendants should be excluded because credibility was in issue regarding a letter sent to the plaintiff after a motor vehicle accident.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision that the plaintiff had not met the onus of demonstrating that the ends of justice required exclusion.

The plaintiffs were involved in a motor vehicle accident when a third party swerved to avoid an unidentified driver and collided with their vehicle.

After the limitation period expired, the plaintiffs successfully moved to add the third party as a defendant under rule 5.04(2) of the Rules of Civil Procedure.

The third party appealed.

The Divisional Court allowed the appeal, finding that adding the third party as a defendant would cause significant prejudice due to the 'one percent rule' regarding unidentified motorist coverage, and that the motions judge erred in finding special circumstances.

The applicant brought a motion to review an order imposing terms on a stay of a decision by the College of Physicians and Surgeons of Ontario.

The College sought to stay the motion because the applicant failed to pay a prior costs order.

The Divisional Court decided to hear the motion in the public interest despite the unpaid costs.

The court dismissed the motion, holding that the court has broad jurisdiction under the Statutory Powers Procedure Act and the Rules of Civil Procedure to impose terms when granting a stay.

The defendants sought leave to appeal an order permitting the plaintiff to video-record a defence psychiatric examination.

The motions judge had allowed the recording because the defence doctor refused to allow the plaintiff to take notes or record the examination.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decision under Rule 62.02(4)(a) and that the matter was not of general importance under Rule 62.02(4)(b), as the Court of Appeal had already established the legal principles in Bellamy v. Johnson.

The applicant moved to strike an affidavit and attachments filed by the respondent on an application for judicial review.

The materials were not before the Commissioner.

The Divisional Court granted the motion, holding that the record on judicial review should essentially be the material before the decision-maker, and the affidavit improperly sought to expand the record regarding the applicant's conduct rather than addressing jurisdictional error.

The plaintiff sought leave to appeal a decision regarding the commencement date of litigation privilege over certain documents in an accident benefits dispute.

The plaintiff argued that the judge erred in accepting a bald assertion by the defendant's lawyer as sufficient evidence to meet the dominant purpose test for litigation privilege.

The court granted leave to appeal, finding that the decision conflicted with established authorities and that there was good reason to doubt its correctness, satisfying the test under Rule 62.02(4)(a) and (b).

The appellant church appealed a Small Claims Court decision granting the co-defendant full indemnity for a $5,700 claim by the plaintiffs.

The co-defendant had operated a nursery school on the appellant's premises under an oral commercial lease and sought to transfer the lease to the plaintiffs upon selling the business.

The appellant provided a letter consenting to the transfer, which the co-defendant relied upon to complete the sale, but the appellant later terminated the lease.

The Divisional Court dismissed the appeal, finding the trial judge was not patently wrong in allowing the indemnity claim based on the co-defendant's detrimental reliance on the consent.

In an addendum regarding costs, the court considered whether to depart from the general rule of awarding costs to the successful party on the basis that the legal issue was novel.

The court found that while the circumstances were unique, there were guiding authorities and significant preparation was required.

The court awarded costs to the successful party in the claimed amount of $5,915.04.

Following the dismissal of the applicants' judicial review application on the grounds of delay, the respondents sought costs.

The court fixed costs on a partial indemnity scale, reducing the claimed amounts due to excessive hours, duplication of effort by multiple lawyers, and unexplained disbursements.

Costs were fixed at $18,000 plus disbursements for the respondent union and $14,000 plus disbursements for the respondent locals.

Following a successful appeal granting summary judgment on liability and directing an assessment of damages, the appellant sought costs on a full indemnity basis pursuant to a lease provision.

The respondents argued that costs should be reserved to the assessment judge, as the true magnitude of the appellant's victory would only be known once damages were assessed.

The Divisional Court agreed with the respondents and ordered that the costs of the appeal and the motion for leave be in the discretion of the judge hearing the assessment of damages.

The moving party sought leave to appeal a $10,000 costs award made against it by the Ontario Municipal Board for procedural non-compliance.

The moving party argued the Board erred by allowing an oral request for costs instead of a written one as required by the former Rule 100.

The Divisional Court extended the time to seek leave but dismissed the application, noting that the rule had since been amended to permit oral submissions, rendering the issue moot and not of public importance.

The plaintiff, who claimed to suffer from chronic fatigue syndrome, was denied long-term disability benefits by the defendant insurer.

The plaintiff commenced an action and successfully moved for a mandatory interlocutory injunction requiring the insurer to pay periodic disability benefits and arrears until trial.

The insurer appealed.

The Divisional Court allowed the appeal and set aside the injunction, finding that the motions judge erred in concluding the plaintiff would suffer irreparable harm.

The majority held that the plaintiff's financial hardship and potential loss of dignity did not constitute irreparable harm, as damages would be an adequate remedy if the plaintiff succeeded at trial.

The appellants appealed an order dismissing their motion for certification of a class proceeding and striking certain paragraphs of their statement of claim.

The proposed class action alleged negligence and negligent/reckless misrepresentation by the respondent auditors in connection with financial statements relied upon by lenders who advanced over US$1 billion.

The Divisional Court allowed the appeal in part, finding that the motions judge erred in striking the claim for reckless misrepresentation and in concluding that a class proceeding was not the preferable procedure.

The court upheld the striking of claims by assignor lenders and claims against individual partners and employees.

The matter was referred back to a class proceedings judge.

The self-represented plaintiff appealed an order striking his statement of claim without leave to amend.

The plaintiff had sued his former solicitor for failing to provide a letter confirming the plaintiff's version of events regarding a property sale, claiming damages for mental anguish.

The Divisional Court held that while a witness is absolutely immune from suit for acts related to giving evidence, it was not plain and obvious that a solicitor owes no duty to provide their own recollections to a former client.

The appeal was allowed in part to permit the plaintiff to amend his claim to seek only a statement of the solicitor's recollections, without any claim for damages.

The plaintiffs in a personal injury action appealed an order requiring their expert witnesses to answer questions regarding the foundation and assumptions of their opinions during cross-examination on affidavits filed in response to a summary judgment motion.

The Divisional Court dismissed the appeal, finding no error in the motions judge's ruling that cross-examination on an expert's affidavit should be subject to the same rules as other affiants and is not strictly limited to the four corners of the affidavit.

The appellant tenant brought a motion to admit fresh evidence on appeal.

The Divisional Court dismissed the motion, finding that the evidence was readily available at the time of the original hearing and that the tenant had chosen not to call available witnesses.

Furthermore, the court held that the fresh evidence would not have been conclusive of the issue, applying the test from Sengmueller v. Sengmueller.

The appellant appealed a trial judgment that awarded him nominal damages and 50% of his party-and-party costs against his former solicitor for breach of fiduciary duty.

The Divisional Court upheld the finding that damages for the loss of the business were nominal, but awarded $9,500 in damages for the costs incurred in hiring new counsel to rectify the breach.

The Court also varied the trial costs award to 100% of party-and-party costs, finding the solicitor's egregious conduct at trial justified full recovery.

The appeal was allowed in part.

The plaintiff sought leave to appeal an order declaring a mistrial and awarding solicitor and client costs thrown away to the defendants, following the plaintiff's late production of documents during trial.

The court found the order was interlocutory.

The motion for leave was brought out of time, and the court declined to extend the time due to an unexplained delay of over two years and a lack of settled intention to appeal.

Furthermore, the court held that even if time were extended, leave would be denied as the costs order was discretionary and there was no conflicting decision or good reason to doubt its correctness.

The motion was dismissed with costs.