Civil Litigation - Plaintiff - ODC

The moving party (defendant insurer) sought leave to appeal an order dismissing its motion to remove the responding party's (plaintiff's) counsel.

The removal motion was brought because the responding party's counsel retained two experts (a psychologist and an occupational therapist) who had previously been retained by the moving party to assess the responding party's disability claim.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's conclusion that no confidential or litigation-privileged information had been imparted to the experts by the moving party, and that there is no property in an expert witness.

The plaintiffs sought leave to appeal a costs decision where the motion judge ordered each party to bear their own costs of a certification motion due to the novelty of the issues under s. 31(1) of the Class Proceedings Act.

The plaintiffs argued that s. 31(1) should operate asymmetrically in favour of plaintiffs and not shield unsuccessful defendants from costs.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no serious reason to doubt the correctness of the motion judge's decision, as there is no rule requiring s. 31(1) to be applied asymmetrically.

The defendants sought leave to appeal a motion judge's decision refusing a sealing order for Minutes of Settlement from prior litigation between the parties.

The motion judge had found insufficient evidence to justify sealing the documents under the Sierra Club test.

The Divisional Court granted leave to appeal, finding that there was reason to doubt the correctness of the motion judge's decision, particularly in light of Supreme Court of Canada jurisprudence establishing settlement privilege as a class privilege.

The court also granted an interim sealing order pending the appeal and awarded costs to the moving parties.

The defendant, AT Plastics Inc., sought leave to appeal to the Divisional Court from an order dismissing its appeal of a Master's discovery ruling.

The Master had ruled that the plaintiff, IPEX Inc., was not required to answer certain questions or produce documents regarding its insurers' involvement in a prior $125 million class action settlement.

The court found reason to doubt the correctness of the decision, noting that the private insurance exception may have been incorrectly applied as a complete bar to obtaining relevant information from the insurers.

Finding the issue to be of general importance, the court granted leave to appeal.

The appellant, a union member, appealed a summary judgment decision that dismissed his action challenging two internal union disciplinary convictions.

The Divisional Court found no error in the motion judge's conclusion that the court's jurisdiction over internal union affairs is limited to ensuring compliance with the union constitution, good faith, and natural justice.

The court rejected the appellant's arguments regarding lack of evidence and bias, finding them without merit.

The appeal was dismissed with costs.

Following the dismissal of the defendant's appeal regarding an abortive condominium unit sale, the successful plaintiff sought costs of the appeal.

The plaintiff claimed substantial indemnity costs of $18,310.80 or partial indemnity costs of $12,135.07.

The court found it unnecessary to determine the scale of costs, as the amounts claimed were excessive for a Small Claims Court appeal.

The court awarded the plaintiff costs fixed at $6,750 all inclusive and ordered the release of funds held in court.

The appellant was successful on an appeal from a judgment of the Small Claims Court and sought partial indemnity costs of $19,323.46.

The respondent argued for costs of $5,000 based on proportionality, noting the underlying claim was for $25,000.

The court considered the factors under Rule 57.01 and the principle of proportionality, finding the appellant's claimed costs were higher than what an unsuccessful party might reasonably expect to pay.

The court fixed costs payable to the appellant at $8,000 inclusive of disbursements and HST.

The defendants sought leave to appeal an interlocutory injunction that enforced a non-competition clause and prevented the individual defendant from working for the corporate defendant for six weeks.

The court dismissed the application for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's application of the RJR-Macdonald test.

The court also noted that the non-competition period had already expired, rendering the matter largely moot and not of public importance.

The appellants sought to appeal an order directing the sale of a property and the equal division of the net proceeds between the deceased father's estate and the respondent daughter.

The appellants did not object to the sale itself, only the distribution of proceeds.

Counsel sought a ruling on whether the appeal should be heard by the Divisional Court or the Court of Appeal.

The court declined to issue a declaratory order but considered whether to quash the appeal for lack of jurisdiction.

The court held that because the order for sale and distribution was made under the Partition Act, the appeal properly lies to the Divisional Court pursuant to section 7 of that Act.

The appellants appealed a Small Claims Court decision dismissing their motion to set aside a default judgment in a slip and fall action.

The Deputy Judge had found the appellants failed to establish a meritorious defence and a reasonable explanation for their default.

The Divisional Court allowed the appeal, finding the Deputy Judge misapprehended the evidence regarding the proposed statement of defence and set the bar unreasonably high by requiring the appellants to prove the process server fabricated service.

The default judgment was set aside.

The appellant appealed a Master's order dismissing its action for delay at a Status Hearing under Rule 48.14.

The Divisional Court found that the Master applied the correct two-part test, requiring the appellant to show an acceptable explanation for the delay and that the respondents would suffer no non-compensable prejudice.

The court held that the Master made no error of law, principle, or palpable and overriding error in concluding the appellant failed to meet its burden.

The appeal was dismissed with costs.

Following the dismissal of the appellants' appeal regarding insurance coverage for stolen marijuana plants, the respondent insurer sought costs.

The court awarded the respondent partial indemnity costs, noting that while the respondent was entirely successful, the legal issues were novel and there was no guiding precedent.

Costs were fixed at $6,000 inclusive of HST and disbursements, reflecting a modest allowance for junior counsel.

The plaintiff sued the defendant for injuries sustained while bicycling on a recreational trail.

The defendant moved for summary judgment under s. 4 of the Occupiers' Liability Act, which limits liability to reckless disregard for recreational trails.

The motion judge dismissed the motion, finding s. 4 did not apply or created a rebuttable presumption requiring a trial.

On appeal, the Divisional Court allowed the appeal, holding the motion judge erred in law.

Applying the Hryniak standard, the court found no genuine issue for trial as there was no evidence the defendant acted with reckless disregard.

Following the dismissal of the appellant's appeal, the successful respondent sought costs of $1,036.13, including in-house counsel fees.

The self-represented appellant opposed the costs award on several grounds, including that the trial judge ordered each party to bear its own costs and that the appeal was brought as a matter of social responsibility.

The Divisional Court rejected the appellant's arguments, noting that costs on appeal follow the event.

The court awarded the respondent costs of $925 on a partial indemnity basis.

The defendants sought leave to appeal a costs order of $55,000 made against them following the dismissal of their motion for summary judgment.

They argued the motions judge erred by failing to specify the level of recovery and by not addressing their detailed challenges to the plaintiffs' costs outline.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions, no obvious error in the motions judge's exercise of discretion, and no issue of general importance that transcended the interests of the parties.

The moving parties and responding parties both brought motions under s. 21(5) of the Courts of Justice Act to vary or set aside an earlier order that denied a stay of a Renewable Energy Approval but granted an injunction subject to an undertaking as to damages.

The Divisional Court held that Rule 63.02 does not confer jurisdiction to stay a Renewable Energy Approval, as it is not an 'order' within the meaning of the rule.

The court found no error in the motion judge's exercise of inherent jurisdiction to grant injunctive relief under Rule 40 instead.

Both the motion and cross-motion were dismissed.

The appellants appealed the dismissal of four Small Claims Court actions regarding towing and storage liens under the Repair and Storage Liens Act.

The deputy judge had dismissed the actions mid-trial on a nonsuit motion, finding the wrong parties were named.

The Divisional Court allowed the appeal, finding the deputy judge made palpable and overriding errors regarding the proper parties and erred in law by granting a nonsuit motion before the plaintiffs had completed their case and without putting the defendants to an election.

A new trial was ordered.

Following a successful appeal that certified a class proceeding after the appellant re-cast its case, the court determined the costs of the appeal and the motion below.

The appellant was awarded $45,000 for the appeal as the successful party.

However, because the appellant completely re-formulated its case on appeal, prejudicing the respondent at the motion stage, the court set aside the motion judge's $200,000 costs award to the respondent and ordered that neither party receive costs for the motion below.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Defence and to commence a cross-claim and counterclaim.

The proposed amendments alleged that a settlement agreement between the plaintiff and other defendants constituted a breach of a prior agreement.

The Divisional Court upheld the Master's decision, finding that the Master correctly concluded the proposed amendments were not tenable in law based on a review of the settlement agreement.

The self-represented applicant brought a motion for public interest standing and to consolidate his application for judicial review with a separate Superior Court application.

The respondents opposed the motion, noting they had a pending motion to strike the application for failing to disclose a cause of action.

The Divisional Court dismissed the applicant's motion, holding that the motion to strike must proceed first as it would determine whether there was a serious justiciable issue.

The court also found it lacked jurisdiction to consolidate the matters and awarded costs of $1,000 to each respondent.