Civil Litigation - Plaintiff - ODC

The plaintiff, a pizza delivery driver, brought a proposed class action against the franchisor and 141 franchisees alleging misclassification as an independent contractor.

Both the plaintiff and the franchisee defendants appealed the certification judge's decision.

The Divisional Court dismissed the plaintiff's appeal, upholding the finding that the franchisees were not 'common employers' under the Employment Standards Act.

The Court granted the franchisees' appeal in part, finding the motion judge erred in certifying a conspiracy claim among all defendants because the pleadings only alleged the franchisor controlled the agreements, not that the franchisees conspired with each other.

The certification of employment status as a common issue and the negligence claim were upheld.

The moving parties sought an extension of time and leave to appeal two decisions of Stevenson J. The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, awarding costs of $4,350 to the responding party.

The defendant brought a motion for leave to appeal the order of Myers J. The Divisional Court granted the motion for leave to appeal and awarded costs of $5,000 to the moving party.

The applicant housing co-operative brought a motion to quash the respondent member's appeal of a Landlord and Tenant Board eviction order.

The co-operative argued the appeal did not disclose a question of law and was manifestly devoid of merit.

The Divisional Court dismissed the motion, finding that the member raised sufficient legal issues regarding procedural fairness and the application of the Residential Tenancies Act to warrant a full hearing before a panel.

The member was ordered to continue paying housing charges pending the appeal.

The appellant sought leave to appeal a costs order of $10,000 following the settlement of a slip and fall action for $15,000.

The appellant had originally claimed over $750,000 and incurred disbursements exceeding the settlement amount.

The Divisional Court denied leave to appeal, finding that the motion judge did not err in principle and that the costs award was proportionate and reasonable given the circumstances.

The appellant landlord sought a stay of an order permitting the respondent tenant to return to the commercial premises pending appeal.

The landlord alleged irreparable harm, claiming the tenant's return caused his teenage daughter severe depression, anxiety, and suicidal ideation.

The court found the landlord's affidavit deficient as it relied on hearsay without direct medical evidence linking the daughter's condition to the tenant's return.

Given the potential risk to the daughter's health, the court adjourned the motion and ordered the landlord to file a report from a health professional before determining the issue of irreparable harm.

The self-represented moving party sought to set aside a registrar's order dismissing his appeal for failure to perfect it in a timely manner.

The underlying appeal was from a Master's decision refusing to set aside the dismissal of his wrongful prosecution action for delay.

Applying the factors from Paulson v. Cooper, the Divisional Court found that while there was an intention to appeal and no prejudice to the respondent, the appeal lacked any real chance of success on the merits.

The motion was dismissed with costs fixed at $500.

The appellant brought a motion to vary the order of the motion judge to grant a stay of the Tribunal's decision pending appeal.

The Divisional Court found that the motion judge offered no reasons regarding irreparable harm and thus his decision was not entitled to deference.

Applying the RJR-MacDonald test, the Court found a serious issue to be tried and that the balance of convenience favoured a stay, noting the member had practiced without restriction since 2005.

The motion was granted and a stay was ordered until the appeal hearing date.

Following the dismissal of the appellant's motion to reinstate three Small Claims Court appeals, the respondent sought costs of $8,696.89 on a partial indemnity basis.

The appellant argued costs should be fixed at $1,200.

The Divisional Court found the respondent's requested costs excessive and disproportionate for a straightforward motion involving approximately $13,000.

Applying the factors in Rule 57.01, the court fixed costs at $2,500 all inclusive, payable by the appellant.

The appellants obtained a default judgment against the respondent, an undischarged bankrupt, after successfully moving to lift a bankruptcy stay and striking his pleadings without providing him notice.

The respondent successfully moved to set aside the default judgment.

The appellants appealed, arguing the bankrupt lacked standing under the Bankruptcy and Insolvency Act to bring the motion to set aside and that he was not entitled to notice.

The Divisional Court dismissed the appeal, holding that the bankrupt had standing to defend an action involving claims of fraud that would survive bankruptcy, and that he was entitled to notice of the motion to strike under the Rules of Civil Procedure once the stay was lifted.

The applicant brought a motion to set aside the Registrar's orders dismissing her appeals from the Small Claims Court for late perfection, and sought an extension of time to file.

The court applied the four-part test from Mignacca v. Merk Frost Canada Ltd. While the applicant formed an intention to appeal, the court found she failed to provide the necessary materials or authorities to demonstrate an arguable case on the merits.

The motion to set aside the Registrar's orders was dismissed.

The applicant brought a motion to set aside the Registrar's order dismissing his appeal and to extend the time to perfect the appeal.

The court applied the factors from Paulsson, focusing on the justice of the case and the merits of the appeal.

The court found that the motion judge did not err in holding that the applicant lacked a legal interest under s. 3(1) of the Partition Act and that the document signed by the parties did not constitute a valid trust due to a lack of the three certainties.

Finding no error in principle and no real chance of success on appeal, the court dismissed the motion and awarded costs to the respondent.

The applicants sought to depart from the normal rule that costs follow the event after their application for judicial review of a Compensation Fund Committee decision was dismissed.

They argued that they had already suffered financial loss due to a lawyer's misappropriation, that the case involved a novel public interest issue, and that awarding costs would run contrary to the purpose of the Compensation Fund.

The Divisional Court rejected these arguments, finding the issues were not novel and that the applicants chose to pursue the judicial review knowing the costs risks.

The court awarded partial indemnity costs of $25,000 to the respondent Law Society.

The defendant vehicle owner sought leave to appeal the dismissal of its summary judgment motion.

The owner argued that the driver's criminal conviction for operating a motor vehicle without consent precluded re-litigating the issue of consent, making the claims an abuse of process.

The Divisional Court dismissed the motion for leave to appeal, agreeing with the motion judge that the insurer had led evidence to the contrary raising a genuine issue for trial, and that a full appreciation of the evidence required a trial.

Following a hard-fought application for judicial review, the successful respondent sought costs of $57,647.20.

The applicant argued for a range of $12,000 to $14,000.

The Divisional Court found the respondent's claimed amount excessive for a one-day application, but the applicant's suggested amount too low.

The court fixed costs at $25,000 payable by the applicant to the respondent.

The appellants were successful on appeal from a Small Claims Court judgment and sought costs for both the trial and the appeal.

The court considered whether the 15% cap on costs under s. 29 of the Courts of Justice Act limits the 'double costs' provision under Rule 14.07 of the Small Claims Court Rules when a party beats their offer to settle.

The court held that s. 29 does not cap costs in these circumstances, as doing so would undermine the purpose of encouraging reasonable settlements.

The appellants were awarded $3,411.30 for the trial and $5,000 for the appeal.

The self-represented appellant appealed a Small Claims Court decision dismissing his solicitor negligence claim against the respondent law firm.

The appellant alleged his former solicitor negligently handled his breach of fiduciary duty claim against a real estate agent, pressuring him into a settlement.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of the standard of care for solicitors.

The applicant appealed a decision dismissing his claim against the respondent bank for seizing a GIC and funds from his savings account to satisfy overdue credit card charges.

The applicant argued his signature on the security pledge agreements was forged.

The Divisional Court found no palpable and overriding error in the trial judge's factual finding that the applicant signed the agreements.

Furthermore, the court upheld the finding that the bank was entitled to exercise its common law right of set off.

The appeal was dismissed.

The defendant sought to appeal a Small Claims Court judgment but failed to serve the Notice of Appeal within the 30-day deadline due to inadvertence by its legal representative.

The defendant brought a motion to validate service or extend the time for service and filing.

The Divisional Court declined to validate service as the plaintiff did not actually receive the notice within the required time.

However, applying the 'justice of the case' test, the court granted an extension of time, noting the defendant's continuing intention to appeal, the short length of the delay, the lack of prejudice to the plaintiff, and the arguable merits of the appeal.

Following a successful appeal by the appellant against the Registrar, Motor Vehicle Dealers Act, the court considered written submissions on costs.

The respondent argued that the transcript costs should be disallowed because it had conceded the main legal issue.

The court rejected this argument, finding the facts remained central to the respondent's alternative position.

Applying the principle that costs must be fair and reasonable, the court awarded the appellant partial indemnity costs fixed at $9,733.86 plus GST.