Civil Litigation - Plaintiff - ODC

The plaintiff sought leave to appeal an order setting aside five ex parte injunctions he had obtained against the defendant regarding the proceeds of a real estate sale.

The motions judge had set aside the orders after finding the plaintiff failed to make full and frank disclosure of material facts, including a $2 million mortgage and other joint ventures, and had admitted to dishonesty in other proceedings.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision or her exercise of discretion in assessing the plaintiff's lack of candour.

The appellants (tenants) appealed a Small Claims Court judgment ordering them to pay unpaid rent and utility costs to the respondent (landlord).

The appellants argued that an oral agreement existed wherein utilities were included in the rent, and that the trial judge erred in applying the parol evidence rule.

The Divisional Court dismissed the appeal, finding that the written lease clearly and unambiguously required the tenants to pay for propane and electrical charges, and that the trial judge made no palpable and overriding error.

The defendants abandoned their motion for security for costs of the appeal.

The plaintiffs sought costs of the abandoned motion.

The court found that the plaintiffs did not conceal assets and were entitled to costs.

The court reduced the quantum of costs claimed, noting that the self-represented plaintiff was not entitled to claim fees at a lawyer's rate despite his litigation experience.

Costs were fixed at $8,000 for fees, plus disbursements and GST.

The defendants sought leave to appeal an interlocutory order that dismissed their motions to strike summonses to witnesses and a notice of examination.

The underlying motion was to strike the plaintiffs' statement of claim.

The defendants argued the proposed examinations were too broad and amounted to a fishing expedition.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance, as the scope of examination was properly tied to the broad issues raised in the motion to strike.

Following the dismissal of the appellant's appeal, the successful respondent sought partial indemnity costs of $13,395 for fees and $559.58 for disbursements.

The appellant objected to the hourly rates claimed for senior counsel and a student.

The Divisional Court reduced the hourly rates to $275 for senior counsel and $60 for the student, allowed the disbursements, and fixed total costs at $9,500 inclusive of disbursements plus GST.

The appellants appealed a motions judge's refusal to set aside a default judgment.

The motions judge found that the appellants failed to move as soon as possible and gave no reasonable explanation for the delay.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's exercise of discretion.

The court also declined to interfere with the judgment based on an accounting argument over a $5,000 sum and noted it had no jurisdiction over post-judgment arguments regarding amounts owing.

The appellants appealed a Small Claims Court decision dismissing their action for the return of a $10,000 deposit on a pre-construction condominium.

The vendor had unilaterally relocated the furnace to the front hall closet, rendering it virtually useless.

The Divisional Court found the trial judge misapprehended the evidence by focusing on the wrong closet.

Drawing its own inferences of fact, the court held that the relocation of the furnace constituted a fundamental change to the agreement of purchase and sale, entitling the appellants to rescind the contract and recover their deposit.

The appellants appealed an Ontario Municipal Board decision that struck portions of their statement of claim for injurious affection and refused to order the production of certain settlement agreements and reports.

The Divisional Court held that the Board erred in law by requiring an application under the Municipal Freedom of Information and Protection of Privacy Act as a condition precedent for production, as the Act does not limit information otherwise available in litigation.

The court upheld the striking of the pleadings due to fundamental flaws but granted the appellants leave to amend their statement of claim to properly plead injurious affection.

The appellant brought a motion for leave to introduce fresh evidence and a motion to set aside an order of a single judge quashing her appeal.

The underlying appeal was from a Law Society Hearing Panel's decision to recuse itself and the Appeal Panel's decision to quash her appeal of that recusal.

The Divisional Court dismissed the motion for fresh evidence as the proposed evidence was irrelevant to whether the appealed decision was interlocutory.

The Court also dismissed the motion to set aside the order, finding no error in the conclusion that the decision appealed from was interlocutory and therefore not subject to appeal under the Law Society Act.

The appellant brought a motion to consolidate the hearing of a motion to set aside a 2007 order with a motion to set aside a 2003 order.

The Divisional Court dismissed the motion to consolidate, noting the appellant had ample time to bring the 2003 motion on for hearing and failed to do so, and that the 2007 order was a discrete matter.

The appellant appealed a Small Claims Court judgment awarding the respondent damages for unpaid rent and dismissing the appellant's counterclaim for damage to its goods.

The Divisional Court upheld the trial judge's finding that the arrangement was a license rather than a lease, and found no palpable and overriding error in the dismissal of the counterclaim due to insufficient evidence of causation.

However, the court allowed the appeal in part, reducing the respondent's damages from six months' rent to four months' rent to account for interference with the appellant's access and the improper inclusion of a notice period.

Following the dismissal of the respondent's motion for leave to appeal, the applicant sought costs of $7,603.25 on a partial indemnity basis.

The respondent argued the amount was excessive and suggested $2,850.

The court disallowed costs for the applicant's own time as he acted as the client, not counsel, but allowed fees for his counsel's preparation and attendance.

Costs were fixed at $3,150 on a partial indemnity basis.

Following a previous endorsement, the court received written submissions on costs.

The plaintiffs/respondents requested substantial indemnity costs, which were unchallenged by the defendants/applicants.

The court fixed costs of the motion payable to the plaintiffs in the amount of $10,173.00 all-inclusive.

The defendants sought leave to appeal a decision dismissing their Rule 21 motion to strike the plaintiff's amended statement of claim.

The defendants argued that the plaintiff was not entitled to seek declaratory relief under Canadian or American law.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motions judge's decision.

The court noted that issues regarding the applicability of US law to a cross-border declaration could be litigated later in a motion for summary judgment.

At a settlement conference regarding a mortgage action, the parties were unable to reach a consensus.

The plaintiff's pending motion for leave to appeal an order setting aside default judgment will direct future proceedings.

The court directed the parties to schedule the leave motion for either November 26 or December 3, 2007.

The plaintiffs moved to dismiss the defendants' appeal for delay, and the defendants brought a cross-motion to extend the time to perfect their appeal of a Master's order striking their pleadings.

The Master had previously struck the defendants' pleadings due to repeated failures to comply with timetables and court orders.

The Divisional Court found that the defendants failed to demonstrate a bona fide intention to appeal within the prescribed time, that the delay was excusable, or that the appeal had merit.

The court granted the plaintiffs' motion to dismiss the appeal for delay and dismissed the defendants' cross-motion for an extension of time.

The appellant appealed a trial judgment regarding damages and costs arising from a breach of fiduciary duty.

The Divisional Court dismissed the appeal on damages, finding no error in the trial judge's calculation or refusal to award punitive damages.

However, the court allowed the appeal on costs, finding the trial judge erred in denying costs under Rule 76.13(3) because the action included non-monetary claims and faced a substantial counterclaim, making the ordinary procedure appropriate.

The appellant was awarded trial costs on a partial indemnity basis.

The defendants appealed a Small Claims Court judgment awarding the plaintiff unpaid legal fees.

The appellants argued the trial judge erred by refusing their request for an adjournment on the day of trial.

The Divisional Court found that the trial judge properly exercised his discretion by offering an adjournment on the reasonable condition that the appellants pay the claim amount into court, which they refused.

The appeal was dismissed.

The moving party sought leave to appeal an order extending the time for the respondents to serve their statement of claim.

The statement of claim was issued just before the limitation period expired but was not served until more than four years later, and the respondents failed to provide the 120-day statutory notice under s. 258.3 of the Insurance Act.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's finding of no irremediable prejudice, and noting that the potential disregard of the statutory notice requirement is an issue of public importance.

The appellant appealed the dismissal of its claim against the individual defendant, the sole director and officer of the corporate defendant, for breach of trust under s. 13(1) of the Construction Lien Act.

The appellant argued that where there is a sole director, the onus shifts to that individual to disprove acquiescence in the corporation's breach of trust.

The Divisional Court dismissed the appeal, holding that s. 13(1) does not shift the onus and that actual acquiescence must be proven.

As there was no evidence of the individual defendant's active participation, the appeal was dismissed.