Civil Litigation - Plaintiff - ODC

The plaintiffs, family members of a young man shot and killed by police, brought an action against the Special Investigations Unit (SIU) alleging negligent investigation.

The defendants moved to strike the claim under Rule 21, arguing the SIU owed no private law duty of care to the family.

The motion judge dismissed the motion, finding it was not plain and obvious the claim would fail.

The Divisional Court dismissed the defendants' appeal, holding that the existence of a duty of care in these circumstances is a novel question of law that should be determined on a full evidentiary record at trial, applying the Anns/Cooper test.

The plaintiffs brought a motion for leave to appeal an order bifurcating common issues relating to the quantification and apportionment of any accounting or disgorgement for a claim based on waiver of tort from the other common issues in a class action concerning allegedly defective cardiac defibrillators.

The court granted leave to appeal, finding conflicting decisions on the issue of bifurcation and good reason to doubt the correctness of the order, noting the matter is of sufficient importance to warrant appellate review.

The plaintiffs brought a motion for leave to appeal a certification decision that refused to certify class members' entitlement to punitive damages as a common issue and bifurcated common issues relating to the quantification and apportionment of waiver of tort damages.

The Divisional Court found that there were conflicting decisions on both issues and good reason to doubt the correctness of the motion judge's order.

Leave to appeal was granted on both issues and the hearing of the appeal was expedited.

The appellant, a spiritualist, appealed a Small Claims Court judgment awarding the respondent $5,411.00 for breach of contract.

The respondent had paid the appellant for services to reunite her with her ex-boyfriend, but the appellant provided no services.

The Deputy Judge found the respondent credible and ruled in her favour.

On appeal, the Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's credibility findings or conclusions, and awarded costs to the respondent.

The appellant tenant brought a motion to set aside a Registrar's Dismissal Order that dismissed his appeal from a Landlord and Tenant Board decision for failure to perfect the appeal on time.

The tenant explained the delay was due to financial inability to pay for transcripts and unfamiliarity with procedural requirements.

The court applied a contextual approach, finding the tenant moved promptly to set aside the order and the landlord would suffer no significant prejudice.

The motion was granted, the dismissal order was set aside, and the tenant was granted a short extension to perfect the appeal.

The defendants sought leave to appeal an order certifying a class action and an order refusing to strike the claim against the defendant law firm.

The underlying action involved a charitable gift program that was disallowed by the Canada Revenue Agency, leading to claims of breach of contract and negligence against the promoters and the law firm that provided tax opinions.

The Divisional Court dismissed the motions for leave to appeal, finding no good reason to doubt the correctness of the motion judge's conclusions that the common issues requirement was met and that the pleadings disclosed a tenable cause of action in negligence against the law firm.

The defendant sought leave to appeal a $345,733 costs award made following a partial summary judgment motion in a wrongful dismissal action.

The plaintiff brought a cross-motion for leave to appeal the scale of costs.

The court granted the defendant's motion, finding that the magnitude of the costs award and the motion judge's lack of particulars in her reasons provided good reason to doubt the correctness of the order and raised issues of public importance regarding access to justice.

The plaintiff's cross-motion was dismissed as it did not raise matters of continued importance.

The plaintiff sought leave to appeal an order dismissing its motion to compel the defendant to deliver a further and better Affidavit of Documents.

The plaintiff argued the order conflicted with case law and misapprehended the nature of Anton Piller orders.

The Divisional Court dismissed the motion, finding the motion judge's decision was discretionary, turned on the specific facts of the case, and did not involve matters of general public importance.

The court noted the plaintiff already had access to the documents in question and was arguably in a better position to list them.

The moving parties sought leave to appeal an order dismissing their motion to compel the responding parties to deliver a further and better Affidavit of Documents.

The motion judge had found no need for the order because the moving parties' lawyers already had access to the documents through a related proceeding involving the same responding parties.

The Divisional Court dismissed the motion for leave to appeal, finding the motion judge's decision was a practical solution to a unique factual matrix and did not raise matters of general or public importance.

The moving parties sought leave to appeal an interlocutory injunction that prevented them from directly soliciting the responding party's customers after their business relationship deteriorated over allegations of contaminated products.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the RJR Macdonald test for an injunction, including the findings of a serious issue to be tried, irreparable harm to the responding party's business relationships, and the balance of convenience favouring the responding party.

The plaintiff accounting firm appealed a Deputy Judge's order requiring it to return garnished funds to the defendants.

The parties had entered into a settlement agreement for $1,000 to resolve the entire action, but the plaintiff had already collected over $2,500 through garnishment without informing the defendants.

The Divisional Court dismissed the appeal, finding the Deputy Judge correctly interpreted the settlement agreement as binding all parties and resolving the entire debt.

The court awarded costs of $850 against the plaintiff, noting its actions in attempting to keep both the settlement and garnished funds were outrageous.

The applicant physician brought a motion to stay a hearing before the hospital's Board of Directors regarding the termination of his hospital privileges, pending an application for judicial review.

The applicant alleged lack of notice and reasonable apprehension of bias.

The court found the applicant's case weak on the merits and that he would not suffer irreparable harm if the hearing proceeded.

The balance of convenience favoured continuing the hearing.

The motion for a stay was granted only to the extent that the Board was ordered not to disclose its decision until after the disposition of the judicial review application.

Following the dismissal of the appellant's appeal from a Master's order refusing to add a new party plaintiff, the court determined the quantum of costs.

The successful respondents claimed costs of approximately $19,855 and $15,427 respectively.

The court found these amounts excessive given the brief nature of the appeal and the fact that much of the preparation duplicated work done before the Master.

Costs were fixed at $10,000 inclusive for each of the two groups of respondents.

The plaintiff sought to appeal a final decision dismissing his $750 million action to the Divisional Court, relying on inherent jurisdiction.

The defendants moved to quash the appeal on the grounds that the Divisional Court lacked jurisdiction over final orders exceeding $50,000, the plaintiff had exhausted his appeals at the Court of Appeal, and the proceeding was an abuse of process.

The court granted the motion to quash, finding it lacked jurisdiction and noting the plaintiff and his counsel's relentless pursuit of a settled matter and failure to pay previous costs awards constituted an abuse of process.

Costs of $5,000 were awarded against the plaintiff and his counsel personally.

The appellants appealed a Small Claims Court judgment finding them liable in negligence for failing to adequately warn the respondent about a potential basement leak during a home inspection.

The appellants argued the trial judge erred by establishing a standard of care without expert evidence and failing to consider contributory negligence.

The Divisional Court dismissed the appeal, holding that the appellants' own testimony established the standard of care and that contributory negligence was not pleaded at trial.

The trial judge's finding of liability was not a palpable and overriding error.

The plaintiff sought leave to appeal a costs order of $32,307.14 made following a three-day trial under the Simplified Rules where both the claim and counterclaim were dismissed.

The plaintiff argued the costs were disproportionate and inconsistent with similar cases.

The court dismissed the motion, finding no good reason to doubt the correctness of the trial judge's order and noting that the trial judge was alive to the issue of proportionality.

The defendants brought a motion for leave to appeal a post-certification decision that dismissed their request to amend the class definition by inserting cut-off dates for three models of allegedly defective defibrillators.

The defendants argued the motions judge erred in placing the burden of proof on them and in finding some basis in fact for the plaintiffs' proposed dates.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no reason to doubt the correctness of the motions judge's decision, and that the burden was correctly placed on the defendants to justify amending the certification order.

The applicant sought to have no costs awarded following an unsuccessful application and motion.

The Divisional Court held that costs should follow the event, as there was no novel issue or public interest raised.

The court rejected the York University Faculty Association's request for substantial indemnity costs and awarded $1,500 to York University and $3,500 to the Faculty Association, payable by the applicant.

The moving party, a tenant with an unregistered 10-year lease, sought a stay of a judgment declaring his lease unenforceable against the responding party bank, which held a registered mortgage on the property.

The bank had moved for a writ of possession following the mortgagor's default.

Applying the RJR MacDonald test, the court found a serious issue to be tried, irreparable harm if the tenant were evicted, and a balance of convenience that favoured granting the stay on strict terms.

The stay was granted on the condition that the tenant pay a lump sum for arrears and ongoing monthly payments pending the appeal.

The appellant appealed an order dismissing its motion for partial summary judgment on a mortgage claim.

The Divisional Court found that the motions judge erred in concluding there was a genuine issue for trial regarding whether the appellant knew or ought to have known the respondent signed the mortgage under false pretences.

The court held that a lending bank owes no duty of care to a borrower absent a special relationship giving rise to a fiduciary duty, which was not present here.

The appeal was allowed and partial summary judgment was granted.