Civil Litigation - Plaintiff - ODC

The plaintiff brought a motion to set aside an order of a single judge of the Divisional Court, who had refused to quash the defendant's appeal of an order dismissing a motion to discharge construction liens.

The panel held that the original order dismissing the motion to discharge the liens was interlocutory, not final, because it did not finally determine the validity of the liens, which remained an issue for trial.

The motion was granted, the single judge's order was set aside, and the appeal was quashed.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Panel, which had overturned a Hearing Panel's dismissal of professional misconduct complaints and remitted four particulars for a new hearing.

The Divisional Court first determined it had jurisdiction, finding the Appeal Panel's decision was a final order.

On the merits, the Court held that the Appeal Panel reasonably concluded the Hearing Panel had misapprehended the evidence by failing to accord any weight to the factual findings of predicate tribunals (the HRTO and Superior Court).

The appeal was dismissed with costs awarded to the Law Society.

The appellant law firm appealed a Master's decision that varied an earlier costs order and awarded $1,000 in costs to the self-represented respondent upon the discontinuance of a fee recovery action.

The respondent also appealed, challenging the discontinuance and seeking higher costs.

The Divisional Court allowed the appellant's appeal regarding the variation of the costs order, finding the Master was functus officio and lacked jurisdiction to vary costs orders previously made by superior court judges.

The appeals regarding the $1,000 costs award were dismissed, as the Master reasonably approximated the respondent's disbursements and correctly applied the law regarding self-represented litigants' entitlement to costs for foregone income.

The applicant sought judicial review of a Master's refusal to recuse herself from a construction lien reference due to alleged bias.

The Divisional Court considered whether the application was premature, as it challenged an interlocutory order before the underlying proceeding was completed.

Applying the factors from Air Canada v. Lorenz, the court weighed the potential hardship to the applicant against the adverse consequences of delay, waste, and fragmentation.

The court concluded that the adverse consequences of delay outweighed the possible hardship to the applicant, particularly given the statutory framework of the Construction Lien Act designed for speedy resolution.

The application was dismissed for prematurity.

The defendant sought leave to appeal an order dismissing his motion for summary judgment in a personal injury action arising from a motor vehicle accident.

The motions judge had declined to grant partial summary judgment or hold a mini-trial, finding that the defendant's role could not be severed from the continuing narrative of the accident without risking inconsistent findings of fact.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the Hryniak framework and no issue of general importance warranting an appeal.

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 moving parties (defendants) sought an extension of time to appeal a decision that reversed a Master's report in a construction lien dispute.

The appeal period under the Construction Lien Act had expired.

The court applied the test for extending time under Rule 3.02(1), finding that the moving parties had formed an intention to appeal within the prescribed period and provided a reasonable explanation for the delay, which was largely due to attempts to clarify the order and the retirement of the motions judge.

Finding no relevant prejudice to the respondent and that the appeal had some merit, the court granted the extension of time in the interests of justice.

The defendants sought leave to appeal an interlocutory costs order of $25,000 awarded to the plaintiffs following a motion.

The defendants argued the motions judge breached procedural fairness by hearing costs submissions without giving them time to review the plaintiffs' bill of costs, and erred in assessing success.

The Divisional Court dismissed the application, finding no conflicting decisions and no reason to doubt the correctness of the order.

The court noted that parties are expected to be prepared for costs submissions immediately following a motion.

The moving parties sought leave to appeal an interlocutory costs order of $25,000 awarded against them following a motion regarding outstanding undertakings.

The Divisional Court dismissed the application, finding no conflicting decisions on costs and that the motion judge's discretion was not wrongly exercised given the defendants' delay in the personal injury action.

The court held that the proposed appeal did not involve matters of such importance to warrant granting leave.

The applicants sought to set aside a single judge's decision quashing their application for judicial review on the basis of mootness.

The applicants argued that the judge should have applied the 'plain and obvious' test and referred the matter to a full panel.

The Divisional Court dismissed the motion, holding that the 'plain and obvious' test applies to defects on the face of a proceeding, whereas the Borowski test is the correct framework for determining mootness.

The court found no palpable and overriding error in the motions judge's discretionary decision to decline hearing the moot application.

During a judicial review proceeding, the court struck the applicant's affidavit from the record.

The court found that the affidavit contained argument and attempted to supplement the record before the Tribunal.

The applicant failed to satisfy the court that the affidavit fell within the exceptional circumstances set out in Keeprite that permit a party to file affidavit evidence to supplement the record.

The appellant appealed a Small Claims Court judgment awarding the respondent contractor $18,161 for home renovations.

The appellant argued the trial judge erred in admitting an annotated work report not served 30 days before trial and in finding the contract scope excluded a former restaurant attached to the home.

The Divisional Court dismissed the appeal, holding that the Small Claims Court rules on document admission are enabling, not prohibitive, and that the trial judge's interpretation of the contract scope was supported by ample evidence.

The appellants appealed an order dismissing their motion to strike the respondents' claim for intentional interference with economic relations.

The appellants argued the claim lacked sufficient particulars regarding unlawful conduct, actionable conduct against third parties, and damages.

The Divisional Court dismissed the appeal, finding that the statement of claim and amended particulars provided sufficient material facts to allow the appellants to respond, and that the pleading adequately disclosed a reasonable cause of action.

The plaintiff in a proposed class action brought a motion for a stay of a case management direction pending a motion for leave to appeal.

The case management judge had ordered that the parties were not required to exchange affidavits of documents prior to a focused summary judgment motion.

The Divisional Court dismissed the motion for a stay, finding that the plaintiff failed to satisfy any of the three branches of the RJR-MacDonald test.

The court held there was no serious issue to be tried regarding the discretionary case management order, no irreparable harm, and the balance of convenience favoured allowing the action to move forward.

The plaintiff brought a motion to set aside the registrar's dismissal for delay of his appeal to the Divisional Court.

The appeal was from a Master's decision dismissing his motion to set aside the dismissal of his action for delay.

The court applied the factors from Paulsson v. University of Illinois and found that the plaintiff failed to meet his burden.

The delay in obtaining transcripts was not a valid excuse, and the justice of the case favoured the defendants given the history of delay and the weak merits of the appeal.

The motion was dismissed.

The applicant sought leave to appeal a decision upholding a master's order to strike paragraphs from his statement of claim.

The struck paragraphs referred to documents and information obtained during a public complaint process under the Police Services Act, which are deemed privileged.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the lower court's decision.

The applicants sought judicial review of an interlocutory order from a Small Claims Court Deputy Judge, who had dismissed their motion to strike the respondent's claim for lack of jurisdiction and expiry of a limitation period.

The Divisional Court dismissed the application, holding that judicial review of interlocutory Small Claims Court decisions is only available in narrow circumstances, such as when the court acts without jurisdiction.

The court found that the Deputy Judge's provisional determination of jurisdiction based on allegations of theft did not warrant judicial review, as the Small Claims Court generally has jurisdiction to determine its own jurisdiction.

The parties consented to fix costs in the amount of $89,972.43.

The court ordered that the costs be payable within two weeks of the respondent deciding not to appeal, or within two weeks of an order dismissing the respondent's appeal if leave is granted.

If the respondent successfully appeals, costs will be determined by the Court of Appeal.

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.

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.