Civil Litigation - Defendant - ONCA

The appellant, Jaswant Singh Kooner, appealed a trial judgment that found he owed his lawyer, Peter Verbeek, outstanding legal fees.

The trial judge had found an oral retainer agreement for fees and disbursements, not a contingent fee, and awarded Verbeek $59,342.42 plus $22,500 in costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings regarding the oral retainer agreement or the reasonableness of the fees.

Leave to appeal the costs award was also dismissed.

The appellant appealed a motion judge's order striking his claims for wrongful dismissal and severance pay.

The respondents cross-appealed seeking to strike the appellant's remaining claims for emotional distress, breach of human rights, and occupational health and safety violations.

The Court of Appeal upheld the striking of the wrongful dismissal claim but set aside the striking of the severance pay claim, finding that the limitation period for severance claims should run from the date of completion of employment rather than from the date of notice of termination.

The Court also upheld the motion judge's decision not to strike the remaining claims, finding them entangled with factual issues inappropriate for determination on a rule 21 motion.

The appellants, towing companies owned by members of the Six Nations of Grand River Indian Reserve, sought to retain vehicles towed and stored at their facilities pending payment of towing and storage fees.

The respondent insurance company, which had acquired ownership of the vehicles following accidents or thefts, brought applications under the Repair and Storage Liens Act to retrieve the vehicles.

The appellants claimed exemption from the provincial lien regime under section 89(1) of the Indian Act, arguing that the vehicles constituted personal property of Indians located on a reserve and therefore could not be seized by non-Indian parties.

The Court of Appeal dismissed the appeal, holding that section 89(1) of the Indian Act only protects against seizure by creditors or the Crown, not by debtors.

Since the respondent was a debtor rather than a creditor, the appellants could not claim the protection of section 89(1).

The appellants, estate trustees of the testator's estate, appealed the trial judge's finding that the testator lacked testamentary capacity when executing two wills dated August 16, 2010 and September 8, 2010.

The trial judge found the testator was unaware of the nature and extent of his assets, did not remember persons he might be expected to benefit, and did not understand claims that could be made by excluded persons.

The appellants also sought leave to appeal the costs award, which required the estate trustees personally to pay costs rather than having them borne by the estate.

The Court of Appeal found no palpable errors of fact and upheld the trial judge's findings on capacity and costs.

The appellant sought to vary a trial judgment that had been set aside by the Court of Appeal.

The motion judge dismissed the motion on jurisdictional grounds.

The Court of Appeal upheld this decision, finding that the motion judge lacked jurisdiction to vary a judgment that had already been set aside by the appellate court.

The court also found no evidence of fraud or accidental slip that would justify relief under the applicable rules.

The appellants appealed the dismissal of their action for damages arising from a municipal tendering process and termination of an agreement of purchase and sale.

The trial judge found that while the respondent Town breached its tendering process by accepting a non-compliant bid, the appellants failed to demonstrate they would have been awarded the contract.

The appellants did not meet their burden of proving on a balance of probabilities that the contract would have been awarded to them, as the trial judge found it more probable the Town would have re-tendered.

The Court of Appeal upheld the trial judge's decision, finding it was open to the Town to reject all bids and re-tender with different specifications.

The agreement of purchase and sale was also properly terminated in good faith for legitimate business reasons.

The appellant brought motions to review two orders of a single judge: one directing his motion to remove respondents' counsel to be heard immediately, and another dismissing that removal motion with costs.

The respondents brought a motion to review a third order to impose a deadline for the payment of those costs.

The Court of Appeal dismissed the appellant's motions, finding the scheduling order practical and the proposed fresh evidence irrelevant.

The Court granted the respondents' motion, ordering the appellant to pay the previously awarded costs and the costs of these motions by a specified date, failing which his appeal would be dismissed.

The appellant sued the respondent, a lawyer who represented the Children's Aid Society in a child protection proceeding, for $7 million alleging conspiracy, fraud, perjury, and breach of trust.

The motion judge struck the statement of claim for disclosing no reasonable cause of action, noting that statements made in court are protected by absolute privilege and perjury is a criminal matter.

The Court of Appeal dismissed the appeal, affirming that absolute privilege applies to statements by counsel and evidence filed in court, and finding the pleadings deficient in material facts.

The self-represented plaintiffs sought to review an order dismissing their motion for an extension of time to serve a notice of appeal from a summary judgment dismissing their medical malpractice action.

The Court of Appeal upheld the dismissal, finding no possible merit to the appeal because the plaintiffs failed to produce an expert report establishing a breach of the standard of care or causation, despite multiple opportunities to do so.

The defendant appealed a motion judge's order dismissing her third-party claim for delay.

The Court of Appeal dismissed the appeal, finding the motion judge exercised his discretion reasonably, as more than eleven years had passed since the events giving rise to the litigation and the defendant offered no satisfactory explanation for the inexcusable delay.

The respondent employee sued his former corporate employer and its directing mind for breach of an employment contract, claiming a 50 per cent commission on profits from a real estate project completed after his resignation.

The trial judge found both the corporation and the directing mind liable for the full 50 per cent of the profits, including those earned by third-party investors.

On appeal, the Court of Appeal upheld the finding that the contract entitled the employee to post-termination profits based on an objective interpretation of the agreement.

However, the Court allowed the appeal in part, holding that the employee was not entitled to profits earned by third-party investors, and dismissed the action against the directing mind personally, finding no basis to pierce the corporate veil.

The appellant defaulted on a mortgage, leading the respondents to issue a notice of sale.

The appellant challenged the redemption amount, specifically a three-month interest prepayment penalty, and appealed the motion judge's order.

The appellant also sought to set aside a registrar's order dismissing a related appeal, arguing the registrar was not bilingual as required by the Courts of Justice Act.

The Court of Appeal dismissed the appeal regarding the prepayment penalty, found the bilingual rights issue moot because the mortgage had already been redeemed, and declined to determine the final redemption amount, leaving it to the master.

The appellant tenant terminated a commercial lease, arguing the landlord failed to complete the building in accordance with the schedule.

The trial judge found the tenant acted unreasonably and not in good faith by failing to consider other contractual options, such as completing the work itself and deducting the cost from rent.

The Court of Appeal upheld the liability finding but allowed the appeal on damages in part, reducing the damages award by the $50,000 it would have cost to complete the building.

The cross-appeal on damages was dismissed due to the landlord's failure to mitigate.

The plaintiff brought a civil action against the Crown and police for malicious prosecution, abuse of process, conspiracy to injure, and intentional infliction of harm after his sexual assault conviction was overturned based on new DNA evidence.

The Crown successfully moved to strike the claims for abuse of process, conspiracy, and intentional infliction of harm on the basis that malicious prosecution is the only tort available against a prosecutor.

The Court of Appeal allowed the appeal, holding that the jurisprudence is not fully settled on whether the four elements of malicious prosecution must always be proven in every civil action against a prosecutor, and therefore it was inappropriate to strike the claims at this early stage.

The defendants appealed a motion judge's order dismissing their third party claim against the officers and directors of the plaintiff corporation.

The Court of Appeal allowed the appeal, finding that the motions judge erred in holding that a claim for contribution could not be maintained and that the representations of the third parties had to be made outside the scope of their office.

The Court held it was not plain and obvious that the third party claim could not succeed, set aside the dismissal, and awarded costs to the appellants.

The appellants appealed a decision finding that the defendant no longer had insurance with the respondent for a 1970 GMC truck at the time of a motor vehicle accident.

The defendant and his insurance broker had signed a form to delete the truck from the policy effective December 10, 1993.

The accident occurred on December 27, 1993.

The appellants argued the cancellation was not effective until processed by the insurer in January 1994.

The Court of Appeal upheld the motions judge's finding that the broker had authority to accept the cancellation on the insurer's behalf, making it effective on December 10, 1993.

The appeal was dismissed.

The appellant school board appealed a decision refusing to stay the respondent's Small Claims Court action.

The appellant argued that the respondent was arguably a member of the union, and an arbitrator should determine if the collective agreement applied under s. 48(1) of the Labour Relations Act.

The Court of Appeal dismissed the appeal, finding no error in the lower courts' conclusion that the respondent was not a union member, as the appellant failed to meet its evidentiary onus.

The respondent's dairy barn and livestock were destroyed in a fire.

The appellant insurer paid over $1.17 million under the policy but disputed other aspects of the claim, including loss of livestock, loss of earnings, and damage to silos.

At trial, the jury awarded the respondent an additional $488,389 in compensatory damages and $750,000 in punitive damages for the insurer's breach of its duty of good faith.

The insurer appealed.

The Court of Appeal allowed the appeal in part, setting aside the punitive damages award.

The Court held that while the insurer breached its duty to act fairly and in good faith by failing to promptly pay amounts it reasonably believed were owing, its conduct was not so outrageous or extreme as to warrant punishment.

The minor plaintiff was allegedly attacked by the insureds' son on school property.

The plaintiff sued the son for intentional torts and the parents for negligent supervision.

The parents' homeowner's insurer denied coverage and refused to defend the action, relying on an exclusion clause for intentional or criminal acts by 'any person or any named insured'.

The parents successfully brought a motion for summary judgment declaring the insurer had a duty to defend them.

The insurer appealed.

The Court of Appeal dismissed the appeal, finding the exclusion clause ambiguous as to whether the intentional act of one insured excluded coverage for all insureds, including those sued in negligence.

The ambiguity was resolved in favour of the insureds.

The appellant challenged an order declaring that a judgment debt survived bankruptcy.

He argued that the respondent had delayed too long in bringing the application before the bankruptcy court and that a prior criminal compensation order concerning the same debt rendered further civil proceedings unnecessary.

The court rejected both submissions, finding no statutory bar, no prejudice arising from delay, and no legal basis for the proposition that the criminal compensation order displaced the respondent's bankruptcy remedy.

The appeal was dismissed.