Civil Litigation - Plaintiff - ODC

Following an appeal, the parties were unable to agree on costs and provided written submissions.

The successful respondent sought over $50,000 in costs.

Applying the principles of fairness and reasonableness, the court fixed the respondent's costs for the application for leave to appeal at $2,000 and for the appeal at $15,000, plus disbursements of $1,439.36.

The plaintiff was charged with the second-degree murder of her daughter based on an autopsy report by the defendant forensic pathologist, which concluded the cause of death was multiple stab wounds.

After a second autopsy revealed the wounds were likely caused by dog bites, the charges were withdrawn.

The plaintiff sued the pathologist for negligence, bad faith, and misfeasance in public office.

The pathologist appealed a motion judge's refusal to strike the claim.

The Divisional Court allowed the appeal, holding that the witness immunity rule applied to the pathologist's autopsy report and testimony at the preliminary inquiry, rendering him immune from civil suit.

Following the dismissal of their appeals regarding construction lien rights, the appellants and respondents made written submissions on costs.

The Divisional Court fixed the respondent Rumble's costs at $20,515.72 on a partial indemnity basis, payable by Cassidy and R & A. The court found the respondent Dana's claim for $41,024.52 excessive given the lack of novel arguments on appeal, and fixed Dana's costs at $15,800.00, payable by Kennedy.

The appellants appealed a Small Claims Court decision awarding the respondent damages for mental distress and legal costs following the appellants' breach of a real estate purchase agreement.

The Divisional Court allowed the appeal, finding that damages for mental distress were not pleaded and are generally unavailable for breach of a real estate contract.

The court also set aside the award for legal costs incurred in contemplation of litigation.

However, the court held that the respondent was entitled to forfeiture of the $5,000 deposit paid by the appellants, even though actual damages were less than the deposit amount.

The appellant law firm appealed a Small Claims Court judgment ordering it to pay $6,000 to the respondent, a former client.

The dispute centered on whether $6,000 from the respondent's settlement funds was properly retained by the appellant to pay her husband's outstanding legal accounts, or whether a subsequent $25,000 payment by the husband was an all-inclusive settlement of his debts.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's reliance on the credible testimony of the husband's new counsel regarding the all-inclusive nature of the $25,000 settlement.

The plaintiff, Tarion Warranty Corporation, brought a motion for leave to appeal a decision that denied its motion to strike the defendants' pleadings under Rule 21.01(1)(b).

The court found that Tarion had chosen to enter into a contractual relationship with the guarantors, exposing itself to contractual remedies.

Applying the high threshold for striking pleadings, the court found no good reason to doubt the correctness of the motion judge's reluctance to strike the claim at this stage.

The motion for leave to appeal was denied.

The appellant, UPI Inc., appealed a Master's order that dismissed its motion for summary judgment against the plaintiffs and granted summary judgment dismissing its third party claim against Kemar Mechanical Limited.

The Divisional Court assumed jurisdiction over both the interlocutory and final components of the Master's order.

The court upheld the Master's decision refusing to dismiss the plaintiffs' claim, finding a triable issue regarding UPI's duty to communicate about its furnace maintenance program.

However, the court allowed the appeal regarding the third party claim, concluding that if UPI were found liable, its right to indemnification from Kemar also presented a triable issue.

The respondents brought a motion to continue a sealing order over the court file in an application for judicial review of decisions to exclude and transfer students following an alleged violent incident.

The respondents argued that the sealing order was necessary under the Education Act and the Youth Criminal Justice Act.

The court applied the Dagenais/Mentuck test and found that a complete sealing order was not necessary, as a less intrusive alternative was available.

The court rescinded the sealing order but directed that the court file be edited to remove the names and identifying information of the accused, the victim, and the witnesses.

The plaintiff sought leave to appeal an interlocutory order setting aside a noting in default.

The motions judge had set aside the noting in default because the requisition incorrectly stated the ground as failure to file a statement of claim.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the order and concluding that the issues raised were not of general importance.

The respondents brought a motion for security for costs of the trial and the anticipated appeal.

The court applied the two-part test under Rule 61.06(1) of the Rules of Civil Procedure.

The court found good reason to believe the appeal was frivolous and vexatious, noting the trial judge's extensive findings of fact.

The court also found the corporate appellant had insufficient assets in Ontario to pay the costs, given outstanding judgments and lien claims against it.

The motion was granted, and the appellant's appeal was stayed pending the posting of security for costs.

The appellants appealed a costs award of $60,267.39 made against them following the dismissal of their $50,000 claim under the simplified procedure.

The Divisional Court allowed the appeal, finding that the trial judge erred by failing to apply the principle of proportionality and by focusing on the expectations of the winning party rather than the reasonable expectations of the losing party.

The costs award was reduced to $40,000 inclusive of disbursements and GST.

The appellants appealed a decision dismissing their motion to set aside a default judgment.

The Divisional Court found that the individual appellant was never properly served with the statement of claim and that there was confusion at the hearing regarding which documents were being referenced.

The appeal was allowed, the default judgment was set aside, and the appellants were granted 20 days to file a statement of defence.

The appellants appealed a trial judgment that conducted an accounting between the parties following a failed joint venture in an excavating business.

The trial judge found the appellants owed the respondents a net amount of $3,271.60.

On appeal, the appellants argued the trial judge exhibited bias, ignored evidence, and decided the case on an unpleaded issue.

The Divisional Court dismissed the appeal, finding no bias, no reviewable error in the accounting, and that the pleadings broadly contemplated an accounting.

The respondents' cross-appeal for costs was also dismissed.

The moving party, THICC, sought a stay of a Master's order requiring the Minister of Health to file a section 10 record that included THICC's allegedly confidential information, pending an appeal of that order.

The underlying judicial review challenged the Minister's approval of hospital infrastructure plans.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding the interpretation of a prior consent confidentiality order, irreparable harm if the information was disclosed before the appeal, and that the balance of convenience favoured granting the stay to preserve the appeal's utility.

Following the dismissal of the plaintiff's appeal in a slip and fall action, the court determined the quantum of costs payable to the successful respondents.

The respondents sought $14,659, while the appellant argued she was impecunious and the claimed fees were excessive due to duplication by senior and junior counsel.

The court held that the appellant's financial circumstances were irrelevant to the costs issue, but agreed that the opposite party should not pay for duplication of counsel on a non-complex appeal.

Costs were fixed at $8,500 all inclusive.

The appellants appealed a trial judge's finding that the respondent undertook property renovations in detrimental reliance on the appellants' negligent misrepresentations.

The Divisional Court allowed the appeal, finding the trial judge committed a palpable and overriding error.

The evidence showed the respondent commenced renovations long before any representation was made, and the trial judge failed to establish a substantial connection between the alleged losses and the misrepresentations.

The trial decision was set aside and the claim dismissed.

The applicant sought costs following a successful judicial review application.

The parties agreed that costs should be awarded on a partial indemnity basis.

The applicant claimed $10,796.66, while the respondent argued for a lower amount.

The Divisional Court considered the respondent's conduct, which might have warranted solicitor and client costs, but also noted that the arguments were substantially similar to those at the lower level, allowing for economies in preparation.

Applying the principle of reasonable expectations, the court awarded the applicant $9,203.49 in total costs.

The appellant appealed a trial decision finding it suffered no damages after its loader was damaged by the defendant.

The trial judge had characterized the appellant's payments for the damaged machine as lease costs rather than contributions toward a purchase under a conditional sales contract.

The Divisional Court allowed the appeal, finding the appellant was forced to incur the expense of renting an alternative loader while waiting for the insurance company to write off the original machine, and awarded damages for the rental costs.

The appellant appealed a Small Claims Court decision dismissing his claim against the respondent for negligent vehicle maintenance.

The appellant alleged the respondent failed to properly tighten a drain plug during a fluid change, causing his vehicle to break down 11 months later.

The Divisional Court upheld the trial judge's finding that the appellant failed to prove causation on a balance of probabilities.

The court also found no error in the admission of a downloaded maintenance manual into evidence.

The appeal was dismissed with costs.

The appellant appealed the dismissal of her motion for summary judgment against the respondent bank.

The dispute involved funds in a bank account originally owned by the appellant's mother, which the bank had transferred to the appellant's brother.

A Kuwaiti court had ruled that the funds belonged to the appellant.

The Divisional Court found that the Kuwaiti judgment was final and that the bank was a privy to the brother, meaning it would be bound by the foreign judgment through issue estoppel.

However, the appeal was dismissed because the appellant's pleadings had not been amended to properly base the claim on the foreign judgment.