Civil Litigation - Defendant - ONCA

This is a costs endorsement following an appeal.

The respondent, Heliotrope Investment Corporation, provided costs submissions as requested, while the appellants, Jonathan Gary Beach and Martha Lorraine Beach, chose not to make any submissions.

The court awarded costs to the respondent in the amount of $20,000, inclusive of disbursements and relevant taxes.

The appellant tenant, Hudson's Bay Company (HBC), appealed a motion judge's decision regarding relief from forfeiture under s. 20 of the Commercial Tenancies Act, seeking rent abatement due to COVID-19 impacts.

The respondent landlords (Oxford and affiliates) cross-appealed the deferral of rent payments and reduction of interest rates.

The Court of Appeal dismissed HBC's appeal, affirming that s. 20 does not permit rent abatement or reduction as it would rewrite the lease.

The court allowed the landlords' cross-appeal, finding that deferrals should only be granted to allow the tenant to comply, not to mitigate economic harm, and that the interest rate should not have been varied from the lease terms.

The appellants, granddaughters of the deceased Rosa Galvano, appealed a trial judgment awarding the respondent, Nellie Galvano (the deceased's daughter), $273,039.54 from the estate for personal care provided to Rosa from December 2007 to February 2012.

The appellants raised three grounds of appeal: (1) that the respondent should pay occupation rent for remaining in the house after the six-month period specified in the will and that such rent should be set off against the care award; (2) that the trial judge erred in allocating all occupancy costs to Rosa's care in the final five years rather than maintaining the prior cost-sharing arrangement; and (3) that the estate was owed unaccounted income of approximately $5,000.

The Court of Appeal dismissed all grounds of appeal, upholding the trial judge's reasoning and discretionary decisions.

The appellant appealed a judgment that effectively granted default judgment on a motion that only sought a writ of possession.

The Court of Appeal allowed the appeal, noting that an earlier default judgment had been set aside and not reinstated, and that the materials filed in support of the motion were inadequate to support the relief requested.

The judgment and writs of possession were set aside.

The appellant appealed a motion judge's decision to strike his Amended Statement of Claim.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that permitting the claim to proceed would be an abuse of process by allowing relitigation of issues already determined by courts of competent jurisdiction.

The Court also noted that the claim disclosed no reasonable cause of action.

The insurer appealed a motion judge's order requiring it to defend the insured against a claim for bodily injury arising from mould and bacteria exposure, and allowing the insured to choose its own counsel.

The Court of Appeal dismissed the appeal, finding that the policy's concurrent exclusion clause for mould did not clearly and unambiguously narrow the duty to defend where non-excluded perils (bacteria) were also alleged.

The Court also upheld the insured's right to choose its own counsel at the insurer's expense due to a reasonable apprehension of conflict of interest regarding the coverage issue.

The appellant appealed an order of the Superior Court of Justice declaring him a vexatious litigant.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant demonstrated a pattern of behaviour falling squarely within the criteria for a vexatious litigant set out in Lang Michener v. Fabian.

Costs of $10,000 were awarded to the respondent.

The appellant appealed a motion judge's decision to vary a procedural consent order and order the disclosure of an audit report.

The Court of Appeal dismissed the appeal, finding that the motion judge properly varied the consent order because the respondent's counsel was unaware of material facts when consenting.

The Court also upheld the disclosure of the audit report, as there was unanswered evidence that the Trustee had already declared its existence and contents to a third party, making it unnecessary to decide the broader issue of whether a Trustee in Bankruptcy can claim litigation privilege.

The respondent's vehicle became stuck on a country road on a cold winter night.

She left the vehicle to seek help, became disoriented, fell into a river, and suffered severe frostbite requiring amputations.

She claimed statutory accident benefits.

The insurer denied the claim, arguing the injuries were not directly caused by the use or operation of an automobile.

The motions judge ruled in favour of the respondent.

On appeal, the Court of Appeal reversed the decision, holding that while the respondent met the purpose test, she failed the causation test because the use of the vehicle was not a direct cause of her injuries due to numerous intervening acts.

The self-represented appellants appealed a trial judge's finding of liability and decision to strike a jury notice.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's liability finding and concluding that fresh evidence would not have altered the result.

The court also held it was open to the trial judge to strike the jury notice.

The appeal was dismissed without costs.

The appellants appealed a judgment of the Superior Court of Justice to the Court of Appeal.

The Court of Appeal quashed the appeal in its court and transferred it to the Divisional Court, awarding costs thrown away to the respondents.

Following the release of the appeal decision, the parties disagreed on the settlement of the formal order regarding whether it should specify the date of termination of the commercial lease.

The Court of Appeal held that the omission of the termination date could be rectified under Rule 59.06 and determined by the remaining justices under s. 123(3) of the Courts of Justice Act.

The Court declared the lease was effectively terminated on November 19, 2001, noting this does not inhibit the trial judge's discretion on relief from forfeiture.

The respondents, Quebec residents, were injured in an Ontario motor vehicle accident with an uninsured driver.

They obtained a judgment in Ontario, but the respondent Katia's claim under Quebec's no-fault scheme was denied.

The Motor Vehicle Accident Claims Fund appealed an order requiring it to pay the Ontario judgment, arguing that s. 25(2) of the Motor Vehicle Accident Claims Act precluded payment because no amount was payable under Quebec law.

The Court of Appeal held that s. 25(2) only requires the foreign jurisdiction to provide substantially similar recourse and does not require a fact-specific determination of entitlement under foreign law.

The appeal was dismissed regarding Katia's claim but allowed regarding Michel's Family Law Act claim, as Quebec law provides no corresponding right.

The defendant moved for directions regarding a proposed appeal from an order dismissing its Rule 21 motion to dismiss or stay the action.

The defendant sought a determination on whether the order was interlocutory or final, and if final, an extension of time to appeal.

The Court of Appeal held that the order was interlocutory because the motions judge declined to decide the issues due to conflicting evidence and complexity, meaning no substantive rights were finally adjudicated.

The motion for an extension of time was dismissed for lack of jurisdiction, but the defendant successfully obtained the clarification it sought.

Following a decision ordering a new trial, the court issued an addendum on costs.

The court clarified that the new trial would only extend to claims that formed the subject-matter of the appeal, and stayed the execution of a damages award against one respondent pending the new trial.

The costs of the first trial were reserved to the presiding justice at the new trial.

The appellant was awarded costs of the proceedings in the Court of Appeal, fixed at $36,000 on a partial indemnity basis, specifically for the motion to introduce fresh evidence.

Following the release of the main judgment, the court received written submissions on costs.

The appellant achieved substantial success on the appeal and was entitled to costs.

However, the court reduced the appellant's bill of costs by $15,000 for widening the scope of the appeal with unsuccessful compensatory damages issues, by $15,000 for excessive factum preparation time, and by $4,364 for excessive counsel fees.

Costs were fixed at $56,770.77 on a partial indemnity scale.

The appellants' properties were damaged by a gas explosion caused by the intentional criminal act (arson) of the defendant David Gordon.

The respondent insurer denied coverage to both David Gordon and his wife, Dora Gordon, under a homeowner's policy exclusion for damage caused by the criminal act of 'any person insured by this policy'.

The appellants opposed the insurer's summary judgment motion to protect their potential rights of recovery.

The Court of Appeal upheld the motions judge's finding that the clear and unambiguous language of the exclusion clause bound the innocent co-insured to the misconduct of her spouse, thereby excluding coverage for both defendants.

The appellants appealed a jury verdict dismissing their crossclaim against the respondent trailer manufacturer following a fatal motor vehicle accident.

The jury found the accident was caused solely by the negligence of the appellant driver and transport company.

On appeal, the appellants argued the verdict was unreasonable and challenged several evidentiary rulings, including the admission of a deceased driver's statement and log book entries, and the exclusion of coroner's inquest findings.

The Court of Appeal dismissed the appeal, finding the jury's verdict was amply supported by the evidence and the trial judge made no errors in his evidentiary rulings or jury instructions.

The appellant solicitor appealed an order requiring him to fulfill a solicitor's undertaking to repay a $50,000 loan to the respondent from mortgage financing.

The appellant breached the undertaking by paying the funds directly to the debtor.

The appellant argued the debt had already been paid by the debtor but provided only an affidavit based on information and belief, contrary to Rule 39.01(5).

The applications judge refused an adjournment to summons the debtor and ordered the appellant to pay the sum plus prejudgment interest.

The Court of Appeal dismissed the appeal, emphasizing that solicitors must be strictly accountable for their undertakings and noting the lack of admissible evidence supporting the appellant's claims.

Following the release of the main judgment dismissing the appeal, the Court of Appeal issued an addendum to clarify the costs award.

The court upheld the motions judge's decision to award the individual defendants their costs against both plaintiffs, as the individual defendants had been improperly joined in the action.