Civil Litigation - Plaintiff - ODC

The moving party brought a motion for leave to appeal the order of Pollak J. dated November 22, 2021.

The Divisional Court denied the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 all inclusive.

The moving party brought a motion for leave to appeal an order dated January 7, 2022.

The Divisional Court denied the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $5,000.

The appellant appealed a trial judgment awarding $10,000 in defamation damages to the respondent seniors' residence.

The appellant had published an article on his blog alleging financial irregularities, fraud, and elder abuse at the residence.

The trial judge found the statements about elder abuse were defamatory and not protected by the defences of justification, fair comment, or responsible communication on a matter of public interest.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence or application of the defamation defences.

The appellant appealed a trial judgment determining his net entitlement to insurance proceeds following a house fire.

The trial judge had allowed the insurer to set off an overpayment for the house's replacement cost against the appellant's damages for contents, despite the insurer failing to plead set-off as an affirmative defence.

The Divisional Court held that the trial judge erred in law by allowing the unpleaded set-off, as it caused trial unfairness and prejudiced the appellant's litigation and settlement strategy.

The appeal was allowed in part to set aside the set-off, but dismissed regarding the trial judge's factual findings on artwork valuation and additional living expenses.

The appellant sought to appeal a Superior Court decision denying him leave to appeal a family law arbitration award.

The respondent brought a motion to quash the appeal, arguing there is no right to appeal a denial of leave.

The Divisional Court reviewed conflicting jurisprudence and followed the general rule that an order refusing leave to appeal is not appealable, except in narrow circumstances where a judge mistakenly declines jurisdiction.

As the appellant did not allege the judge declined jurisdiction, the notice of appeal was quashed.

The appellant appealed a summary judgment order for a debt owed to the respondent bank, arguing he received the motion materials only 14 days before the hearing, leaving insufficient time to prepare or retain counsel.

The appellant failed to perfect the appeal or attend the hearing.

The Divisional Court found no evidence that the appellant had requested an adjournment or attempted to retain counsel, and held that 14 days was not an unreasonable timeframe to prepare.

The appeal was dismissed with costs.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $5,000.

The appellants appealed a decision refusing to certify their action as a class proceeding.

The proposed class action concerned alleged asbestos exposure at a subway station during demolition activities.

The Divisional Court dismissed the appeal, finding no error in the motion judge's decisions to strike the amended statement of claim, conclude that a class action was not the preferable procedure due to overwhelming individual issues, and find the proposed representative plaintiffs unsuitable due to egregious delay and concerns regarding counsel's competency.

The plaintiff filed a very late factum in a leave application, necessitating an adjournment.

The defendant requested that the leave application be dismissed due to the unreasonable delay.

The court declined to dismiss the application, noting the severe consequence of losing the right to litigate on the merits, but awarded $2,000 in costs to the defendant payable forthwith for the wasted court time.

The plaintiff sought leave to appeal an order discharging a certificate of pending litigation (CPL) regarding a real estate transaction.

The plaintiff argued the motions judge erred in finding the property was not unique, that damages were an adequate remedy, and in relying on a no-registration clause.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's exercise of discretion and concluding that the issues did not transcend the interests of the parties.

The defendant bank moved to quash the plaintiffs' appeal from a Master's order requiring the plaintiffs to pay $100,000 into court as security for costs.

The plaintiffs had appealed to the Divisional Court, arguing the order was effectively final because they were impecunious.

The court held that orders for security for costs are interlocutory, not final, and therefore the Divisional Court lacked jurisdiction.

The motion to quash the appeal was granted.

The appellants appealed the dismissal of their motions to certify eight separate class proceedings against various financial institutions.

The claims alleged that the respondents incorrectly interpreted mortgage provisions regarding partial prepayment rights and early discharge penalties.

The Divisional Court upheld the motion judge's decision, finding that the pleadings failed to disclose a cause of action as they relied on implied terms not supported by the express language of the mortgages.

The court also agreed that the proposed classes were overly broad, individual issues overwhelmed any common issues, and a class proceeding would be unmanageable and not the preferable procedure.

Following the dismissal of the defendants' motion for leave to appeal an order refusing to remove the plaintiff's litigation guardian, the court received written submissions on costs.

The successful plaintiff sought costs on a substantial indemnity basis, while the defendants argued for a lower partial indemnity amount.

The court fixed the plaintiff's costs at $7,826.83 inclusive of GST and disbursements, finding the amount fair and reasonable given the history and circumstances of the litigation.

The Attorney General for Canada sought leave to appeal an interlocutory order certifying a class action against the Crown regarding allegedly defective medical implants.

The Crown argued that the pleadings failed to disclose a reasonable cause of action for regulatory negligence.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions on the matter and no good reason to doubt the correctness of the certification judge's application of the Anns test for duty of care.

The defendants appealed a Small Claims Court judgment that rescinded a home renovation contract and dismissed their counterclaim.

The trial judge found the contract for a sunroom addition voidable for non-compliance with the Consumer Protection Act and rescinded it due to unfair practices.

The Divisional Court dismissed the appeal, holding that the trial judge correctly applied the law and made no palpable and overriding error of fact regarding the contract or the dismissal of the defendants' counterclaim for unjust enrichment.

The appellants appealed a Master's decision that dismissed their motion to amend their statement of defence and granted the respondent's cross-motion for judgment based on minutes of settlement.

The Divisional Court allowed the appeal, finding that the Master erred by hearing the final cross-motion before the interlocutory motion to amend.

The Court also held that the Master applied the incorrect test under Rule 26 by reversing the onus, as the opposing party must prove non-compensable prejudice to defeat a motion to amend.

The appellant law firm appealed an order dismissing its motion for a declaration that certain bank accounts in the respondent's name were held in trust for the appellant, and for a garnishment order.

The Divisional Court found that the motions judge erred in applying the doctrine of res judicata, as the trust claim was not part of the earlier proceedings regarding personal liability.

However, the appeal was dismissed because garnishment under Rule 60.08 was not the proper procedure to resolve a disputed trust relationship.

The dismissal was without prejudice to the appellant commencing a separate action.

Leave to appeal costs was granted, and the costs order was varied to a partial indemnity basis.

The plaintiff corporation sued the defendants for approximately $180,000 for unpaid invoices.

The defendants brought a motion for security for costs, which was initially dismissed on the basis that it would defeat the plaintiff's claim.

On appeal, the Divisional Court found that the motion judge erred by failing to consider whether the plaintiff had access to funds through its sole shareholder.

The court determined that the plaintiff was not impecunious in the extended sense and ordered the plaintiff to post $50,000 in security for costs.

The plaintiffs appealed an order dismissing their motion to add the selling dealership as a defendant after the expiry of the two-year limitation period under the Highway Traffic Act.

The plaintiffs argued the discoverability principle applied because they only learned of a potential defect when they received a recall notice from the manufacturer.

The Divisional Court dismissed the appeal, finding the plaintiffs failed to provide any evidence of due diligence in investigating the cause of the accident during the limitation period or in the months following the commencement of the action against the manufacturer.

The appellant's appeal was previously dismissed as premature.

The respondents sought costs for the appeal.

The court rejected the appellant's argument that costs should be deferred to the end of the proceeding, noting the appeal was a discrete episode.

Applying the principle of what is fair and reasonable for the unsuccessful party to pay, the court fixed costs at $4,000 for the Chiropractic Review Committee and $3,000 for the General Manager, payable in six months.