Civil Litigation - Plaintiff - ODC

The moving parties, individual defendants in a construction breach of trust action, sought leave to appeal an order dismissing their motion for partial summary judgment.

The motion judge had found that the limitation period for the breach of trust claim did not necessarily run concurrently with the breach of contract claim, and that a contractual amendment regarding payment terms was supported by consideration.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no reason to doubt the correctness of the motion judge's decision, and no matters of general or public importance.

The self-represented applicant brought a motion to strike the respondent's responding materials on a judicial review application, arguing they were filed outside the 30-day time limit prescribed by Rule 68.04(4).

The respondent had waited to file its materials until the applicant perfected his application, acting on advice from the Divisional Court office.

The court dismissed the motion, finding the respondent's conduct was reasonable, responsible, and in good faith, and that the applicant suffered no prejudice from the delay.

The moving party sought leave to appeal an Ontario Municipal Board decision awarding costs against him personally, despite him not being a party to the underlying zoning appeal.

The Board had found him to be the 'real litigant' or 'straw man' behind a non-profit corporation's appeal.

The Divisional Court granted leave to appeal on the questions of whether the Board has statutory jurisdiction to award costs against a non-party and whether it erred in principle in doing so on the facts of this case.

Leave was denied on issues of fair notice and SLAPP legislation.

The tenant brought a motion to vary or set aside an order of a single judge that dismissed his appeal of a Landlord and Tenant Board eviction order and vacated the stay of eviction.

The tenant argued the motion judge erred by failing to consider evidence explaining his non-compliance with an interim consent order and by finding no merit to his appeal despite the Board refusing to hear his evidence on premises deficiencies.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact.

The court noted the tenant's counsel did not attempt to present the non-compliance evidence before the motion judge, and the Board had the authority to refuse evidence of deficiencies once the tenant breached the interim consent order.

The appellant appealed a Master's order dismissing her motion to substitute a named individual for a 'John Doe' defendant on the basis of misnomer, or alternatively to add the individual after the expiry of the limitation period.

The appellant had the vehicle's license plate number since the motor vehicle accident but did not identify the owner until after the limitation period expired.

The Divisional Court found no palpable and overriding error in the Master's conclusion that this was not a classic misnomer and that the appellant failed to exercise due diligence to discover the defendant's identity.

The appeal was dismissed.

The plaintiff brought a motion to quash the defendant's appeal of a judgment and costs order under the Construction Lien Act, arguing the notice of appeal was not served within the required 15-day period.

The defendant brought a cross-motion to extend the time for service.

The court found inadequate evidence of a bona fide intention to appeal within the time limit and no real explanation for the delay, concluding the appeal was primarily directed at the costs endorsement.

The plaintiff's motion to quash was granted and the defendant's motion for an extension was dismissed, without prejudice to the defendant seeking leave to appeal the costs decision.

The respondent in an application for judicial review regarding autism funding brought a motion to strike the applicant's affidavits and dismiss the application due to the litigation guardian's failure to attend cross-examination.

The court declined to strike the affidavits or dismiss the application, finding that the filing of a Certificate of Perfection did not bar cross-examination, and instead ordered the litigation guardian to attend.

The court deferred the respondent's alternative requests to strike portions of the affidavits and to dismiss the application for mootness to the Divisional Court panel hearing the main application.

The court also awarded costs to the respondent for an unsuccessful recusal motion brought by the applicant.

The tenant appealed a Small Claims Court judgment awarding the landlord net damages for property damage to a leased commercial premises.

The tenant advanced four grounds of appeal, including evidentiary rulings, credibility assessments, and the trial judge's failure to advise her to retain counsel.

The Divisional Court dismissed the appeal, finding no errors of law or palpable and overriding errors of fact.

The court awarded the landlord substantial indemnity costs due to a Rule 49 offer to settle and the tenant's confusing and unnecessarily expensive approach to the appeal.

The respondents, having been successful on the appeal, sought costs on a substantial or partial indemnity basis.

The appellant did not provide costs submissions.

The court awarded the respondents $3,500 inclusive of disbursements and taxes, citing the straightforward nature of the issues and the principle of proportionality.

The appellants appealed a Small Claims Court decision finding the individual appellant personally liable on a credit application guarantee.

The appellants argued that trial fairness was compromised by the Deputy Judge's excessive intervention and cross-examination of witnesses.

The Divisional Court agreed, finding that the Deputy Judge crossed the line of permissible intervention by extensively cross-examining the appellants' witnesses and acting as a participant in the trial.

The appeal was allowed, the judgment set aside, and a new trial ordered before a different judge.

Following the dismissal of the appellant's appeal, the successful respondent sought costs in the amount of $6,343.82.

The appellant did not provide costs submissions.

Considering the straightforward nature of the issues on appeal and the principle of proportionality, the court awarded costs to the respondent in the amount of $3,000.

The plaintiff appealed a motion judge's decision refusing to remove counsel for the defendants due to an alleged conflict of interest.

A lawyer who had worked extensively on the plaintiff's file moved to the law firm representing the defendants.

The defendants' firm implemented an ethical screen.

The Divisional Court found that the motion judge erred by focusing on whether the firm had done everything possible to avoid disclosure, rather than whether a reasonably informed person would be satisfied that no use of confidential information would occur.

Given the close working relationship between the migrating lawyer and the defendants' counsel, the court concluded the ethical screen was insufficient to protect the integrity of the administration of justice.

The appeal was granted and the defendants' counsel was removed.

The defendants appealed a Small Claims Court judgment awarding the plaintiff $25,000 for breach of a settlement agreement.

The settlement required the defendants to direct an owner's holdback to the plaintiff's counsel and pay an additional $25,000 in post-dated cheques.

The defendants argued that because the holdback was larger than anticipated, they had overpaid and were not required to remit the remaining cheques.

The Divisional Court dismissed the appeal, finding that the defendants breached the clear terms of the settlement agreement, which triggered the default judgment provisions.

The appellant sought costs for a successful motion to extend the time to file a notice of appeal from a Small Claims Court decision.

The appellant claimed over $2,700 in costs, arguing the motion was necessitated by the self-represented respondent's lack of cooperation.

The court found the claimed amount excessive and disproportionate for a Small Claims matter, noting the respondent did not evade service.

The court awarded the appellant costs of $500 all inclusive.

The appellants appealed a summary judgment granting the respondent monies due under a defaulted mortgage.

The appellants argued the judgment should not have been granted or should have been stayed because of an ongoing 2011 action alleging misappropriation of funds by a financial advisor who allegedly controlled the respondent.

The Divisional Court dismissed the appeal, finding no evidence linking the respondent to the defendants in the 2011 action and no triable issues regarding liability under the mortgage.

The court also denied leave to appeal the motion judge's costs award.

The appellant appealed a Small Claims Court decision awarding the respondent damages for defective truck repairs and lost income from an invalid repairer's lien seizure.

The Divisional Court upheld the trial judge's findings that the appellant caused the transmission damage and lacked a valid lien due to an unsigned authorization.

However, the court found the trial judge erred in calculating the offset for the initial clutch and non-clutch repairs.

The appeal was allowed in part, reducing the respondent's damages award from $2,681.62 to $538.46.

The applicants sought leave to appeal to the Divisional Court from an order dismissing their motion for summary judgment.

They argued the motion judge failed to properly apply the summary judgment framework from Hryniak v. Mauldin and failed to provide adequate reasons.

The Divisional Court dismissed the motion for leave, finding no good reason to doubt the correctness of the motion judge's decision, as the judge had properly identified genuine issues of credibility regarding alleged undue influence and elder abuse, and correctly concluded that fact-finding powers could not resolve the dispute fairly.

The court also found the proposed appeal did not involve matters of general public importance.

The Public Guardian and Trustee, acting as litigation guardian for a mentally incapable plaintiff, appealed a motion judge's refusal to approve settlements that would dismiss two actions without costs.

The motion judge had held that the plaintiff had an absolute right to a hearing.

The Divisional Court allowed the appeal, finding that there is no absolute right to a hearing and that a litigation guardian has the authority to settle actions if it is in the best interests of the party under disability.

The court approved the settlements.

The appellant appealed a Small Claims Court decision dismissing her claim for vehicle damage and awarding the respondent insurer damages on its counterclaim for a staged accident.

The appellant argued the trial judge misapprehended the evidence and failed to find a conspiracy against her.

The Divisional Court applied the standard of palpable and overriding error for findings of fact, concluding the trial judge's findings were reasonable and supported by the evidence.

The appeal was dismissed.

The applicant corporation brought a motion to set aside a previous order and grant leave to be represented by a non-lawyer officer and director in a Small Claims Court appeal.

The court noted that the proposed representative was a full-time employee and officer of the corporation, had prepared all the materials, and the appeal involved less than $2,000.

Given the contextual analysis and new information, the court granted the motion.