Civil Litigation - Plaintiff - ODC

The appellants appealed a judgment that awarded the respondents a declaration of trespass, general damages, punitive damages, and costs following a property line dispute over a fence.

The application judge had decided the matter under Rule 14.05(3) of the Rules of Civil Procedure despite conflicting affidavit evidence.

The Divisional Court allowed the appeal in part, holding that Rule 14.05(3) is not available for the resolution of general and punitive damage claims where material facts are in dispute.

The court set aside the damages and costs awards and directed a trial of an issue regarding the respondents' entitlement to damages.

The defendant owner brought a motion pending the plaintiff's appeal of a construction lien trial judgment, seeking security for costs and the return of monies posted to vacate the lien.

The court held that leave under s. 67(2) of the Construction Lien Act is not required for appellate interlocutory motions.

The court dismissed the request to return the monies, noting the judgment was stayed pending appeal.

The court also dismissed the motion for security for costs under Rule 61.06, finding the owner failed to establish that the appeal was frivolous and vexatious or that the plaintiff lacked exigible assets, and found no special circumstances justifying an order under the residual discretion.

The plaintiff was catastrophically injured in a motor vehicle accident.

The police report and the defendant's initial pleadings identified the defendant driver as the owner of the vehicle.

After the two-year limitation period expired, the plaintiff obtained a vehicle ownership search revealing a leasing company was the actual owner.

The plaintiff successfully moved to add the leasing company as a defendant.

The third-party insurer appealed.

The Divisional Court dismissed the appeal, holding that under the discoverability principle, the plaintiff could not reasonably have discovered the true owner earlier.

Alternatively, special circumstances justified adding the defendant despite the expired limitation period.

The defendants sought leave to appeal a decision awarding costs of $15,000 to the plaintiff and ordering two Brampton lien actions to proceed peremptorily.

The Divisional Court dismissed the motion for leave to appeal.

The court held that the scheduling order was interlocutory and not appealable under the Construction Lien Act.

Regarding costs, the court found no error in principle in the motions judge's decision to award costs against the successful defendants, as they had reversed their position on proceeding by a Rule 21 motion, resulting in costs thrown away.

The moving parties sought leave to appeal a decision of the Ontario Municipal Board that dismissed their motion to remove the responding parties' solicitor of record due to an alleged conflict of interest.

The Divisional Court found that the Board correctly applied the test for removal of a solicitor and made factual findings that no retainer existed and no confidential information was imparted.

The motion for leave to appeal was dismissed as the moving parties failed to show an error of law or good reason to doubt the correctness of the decision.

The defendants appealed an order dismissing their motion to dismiss the plaintiff's action for delay.

The motions judge provided no reasons, requiring the Divisional Court to hear the matter de novo.

The action, commenced in 1998 for false arrest, saw little activity until 2008 when the plaintiff served an expert report.

The court found the delay was not intentional or contumelious, as the plaintiff had difficulty obtaining an expert willing to testify against police.

The defendants failed to show prejudice or a substantial risk that a fair trial would not be possible.

The appeal was dismissed, though the court strongly criticized the motions judge's failure to provide reasons.

The appellant appealed a Small Claims Court judgment awarding the respondent $1,628.98 in quantum meruit for boat repairs.

The appellant argued the claim was barred by Part VI of the Consumer Protection Act, 2002 because the respondent failed to provide a written estimate.

The Divisional Court dismissed the appeal, finding that the Consumer Protection Act, 2002 was not yet in force when the repairs occurred.

Furthermore, the predecessor legislation, the Motor Vehicle Repair Act, did not apply because a boat does not fall within the definition of a 'motor vehicle' under the Highway Traffic Act.

The appellants, a contractor and an intermediary, appealed a Small Claims Court judgment finding them in breach of a home renovation contract and awarding the respondents $9,500.

The trial judge had found the contractor breached the contract by demanding a scheduled installment payment before completing equivalent work.

The Divisional Court allowed the appeal, holding that the trial judge erred by implying a term that contradicted the written payment schedule, which did not require work to be completed before installments were due.

The court also found the damages calculation resulted in a windfall.

The respondents' claim was dismissed, and the appellants' counterclaim was remitted for an assessment of damages.

The self-represented plaintiff brought a motion for an extension of time to seek leave to appeal an order regarding the release of her solicitor's file.

The court dismissed the motion, finding no evidence to explain the delay in bringing the motion.

Furthermore, the court held that the tests for leave to appeal under Rule 62.02(4) were not met, as there was no conflicting decision and no good reason to doubt the correctness of the original order, which was based on the evidence before the motion judge.

The appellants brought a civil action in Small Claims Court against a judge of the Ontario Court of Justice, alleging injurious falsehood, misfeasance in public office, obstruction of justice, and fabricating evidence.

The claims arose from the judge's refusal to allow one appellant to act as agent for the other in family court, and the judge's subsequent editing of the hearing transcript.

The Small Claims Court dismissed the action without reasons.

On appeal, the Divisional Court held that while the failure to provide reasons was an error of law, the matter could be decided de novo.

The court dismissed the appeal, finding that the judge's actions were carried out in the course of his judicial functions and were therefore protected by absolute judicial immunity.

The appellant appealed a Small Claims Court decision regarding the purchase of a coin collection, arguing it was a sale by description and that some coins were counterfeit.

The Divisional Court dismissed the appeal on the merits, finding the contract was for specific goods that the appellant had ample opportunity to examine, thus caveat emptor applied.

However, the court allowed the appeal regarding costs, varying the trial costs award to the $1,500 maximum permitted under s. 29 of the Courts of Justice Act.

The appellant appealed a trial judgment dismissing her action to set aside a mutual release on the ground of economic duress.

The Divisional Court found no palpable and overriding error in the trial judge's findings of fact, including the rejection of the appellant's claim that the respondent threatened to damage the premises.

The appeal was dismissed with costs fixed at $300.

The moving party sought leave to appeal a decision dismissing its motion to vary the terms of an injunction.

The moving party argued the decision conflicted with other cases and there was good reason to doubt its correctness.

The court dismissed the motion, finding no conflict in principle, no reason to doubt the correctness of the order, and that the proposed appeal did not involve matters of general public importance.

Costs of $5,000 were awarded to the responding party.

The appellant appealed the dismissal of her motion for certification of a class proceeding against a tour operator regarding a norovirus outbreak at resorts in the Dominican Republic.

The Divisional Court found that while the motions judge did not err in narrowing the class definition, he erred in principle in his analysis of the preferable procedure criterion by failing to assess it in the context of the narrowed class.

The appeal was allowed, the dismissal and costs orders were set aside, and the matter was referred back to the motions judge for consideration of a revised litigation plan.

The appellant psychologist provided treatment to the respondent, an injured worker, beyond the sessions approved by the WSIB.

The appellant provided the services based on assurances from the respondent's paralegal that the WSIB would pay.

When the WSIB did not pay, the appellant sued the respondent in Small Claims Court for her unpaid account.

The trial judge dismissed the claim, finding no contract and no unjust enrichment.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding error in finding that the respondent had made it clear he could not pay, and that the appellant had assumed the risk of non-payment by the WSIB.

The defendants sought leave to appeal a decision dismissing their motion to strike the plaintiff's defamation claim.

The claim arose from a letter and draft Statement of Claim sent by the defendants to a town planner prior to commencing litigation.

The motions judge had found that absolute privilege might not apply if the communication's objective was to induce false testimony.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision, as it appeared to confuse the considerations relevant to absolute privilege with those of qualified privilege by factoring in motivation or bad faith.

The plaintiff brought a motion to enforce an alleged settlement agreement reached between counsel regarding a Small Claims Court appeal.

The plaintiff argued that the parties had agreed to a 'walk away' settlement, supported by email correspondence and draft Minutes of Settlement to which the defendants' counsel did not respond.

The defendants denied that a settlement was reached, claiming they had requested a contribution towards costs.

The court dismissed the motion, finding that the conflicting evidence raised a credibility issue that could not be resolved on a paper record, applying the standard of a summary judgment motion.

No costs were awarded due to the defendants' counsel's failure to respond to correspondence and inclusion of irrelevant matters in their materials.

The Ministry of Natural Resources and the Regional Municipality of Halton appealed an order of the Ontario Municipal Board granting a $60,000 costs premium to the respondent.

The Board had relied on a Court of Appeal decision that was subsequently overturned by the Supreme Court of Canada, which held that a risk premium cannot be exacted against an unsuccessful party.

The Divisional Court found that the Board's rules focus on the conduct of a party, not the result achieved or the risk assumed by counsel.

The appeal was allowed and the costs premium was set aside.

The appellant appealed a Master's decision dismissing his motions to set aside the Registrar's dismissal of two actions for delay.

The Master had held she had no discretion to extend the time for bringing the motions and that the expiry of the limitation period created deemed prejudice.

The Divisional Court allowed the appeal, finding the Master erred in law by ignoring the overarching discretion in Rule 2.03 and by presuming prejudice solely from the expiry of the limitation period when the respondents had early notice of the claims.

The dismissal order for the second action was set aside.

The appellant brought a motion for an extension of time to file appeal documents.

The appellant had previously been granted leave to appeal a costs decision but failed to file the notice of appeal with the court, despite serving it on the respondents.

The court found that the appellant always intended to appeal and that the delay was partly due to settlement discussions between the parties.

The motion for an extension of time was granted, with costs of $400 awarded against the appellant, to be deducted from a previous costs award.