Civil Litigation - Defendant - ONCA

The moving party sought a panel review of a decision dismissing her motion for an extension of time to perfect her motion for leave to appeal from the Divisional Court.

The Divisional Court had previously dismissed her appeal of five Licence Appeal Tribunal decisions.

The Court of Appeal dismissed the motion, agreeing with the motion judge that despite meeting the first four factors for an extension of time, the justice of the case weighed against granting leave because the proposed appeal lacked merit and general public importance.

The appellant sought damages of approximately $1 million for losses sustained when a drainage pipe running underneath a floor installed by the respondent caused a flood in its warehouse.

The trial judge dismissed the negligence claim, finding that although the respondent damaged the drainage pipe by puncturing it with a stake used to brace concrete forms, the respondent nevertheless met the standard of care.

The appellant appealed, arguing the trial judge failed to consider contractual duties, erred in foreseeability analysis, and erred in not determining whether industry practice was itself negligent.

The Court of Appeal upheld the trial judge's decision, finding no error in the application of the standard of care, foreseeability analysis, or treatment of industry practice.

The appellant appealed a judgment ordering him to pay $1,293,734.54 owing on a private residential mortgage granted to the respondents in February 2011.

The appellant raised two grounds of appeal: that the trial judge erred in refusing to grant an adjournment requested on the trial date and in proceeding with the trial in the appellant's absence.

The appellant also sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised her discretion in refusing the adjournment given the lengthy history of the litigation, multiple pre-trials, prior adjournment, the appellant's failure to retain counsel, and the respondents' readiness to proceed.

The court also found that the appellant's proposed defence lacked merit and that any fresh evidence would not have yielded a different outcome.

The appellant emergency room physician appealed a trial judgment finding him liable in negligence for the death of a patient from bacterial meningitis.

The trial judge found the appellant breached the standard of care by failing to consider meningitis, perform a lumbar puncture, or administer standard treatment when the patient presented with confusion, fever, and a history of decreased consciousness.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the patient's mental status, her reliance on an infectious disease specialist's standard of care evidence, or her causation analysis applying the 'but for' test.

A Sanderson costs order against the appellant was also upheld.

The plaintiff brought a class action against the Attorney General of Canada alleging Health Canada was negligent in regulating temporomandibular joint implants.

The defendant moved to decertify the action, arguing the pleadings did not establish a private law duty of care.

On a special case stated to the Court of Appeal, the court held that while a regulator's public statements alone do not create proximity, the plaintiff's allegations that Health Canada repeatedly misrepresented the safety of the implants and failed to correct the misrepresentation despite knowing the risks could arguably establish a prima facie duty of care.

The motion was granted, allowing the claim to proceed.

The appellant appealed the dismissal of her claim for intentional infliction of mental or emotional harm.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial because the appellant failed to produce any evidence of harm or illness, which is an essential element of the tort, over the eight years the matter had been outstanding.

The appellant appealed an order determining an application in the face of conflicting evidence.

The Court of Appeal dismissed the appeal, noting that both parties were content to have the application judge determine the matters on the evidential record without requiring the trial of an issue.

The court found a clear evidential pathway to the application judge's findings and saw no basis to interfere.

The respondent bank sought a writ of possession for mortgaged residential premises.

The application judge granted the writ, finding the appellants were occupants and the appellant wife was the beneficial owner.

On appeal, the Court of Appeal set aside the order, finding the bank's application was deficient because it failed to join the named mortgagor as a party and lacked the necessary documentary evidence to establish its right to possession.

The appeal was allowed and the order set aside without prejudice to the bank's right to pursue further remedies.

The appellant's action was dismissed by the motion judge for failure to post security for costs in accordance with a Master's order.

The appellant appealed the dismissal.

The Court of Appeal dismissed the appeal, noting that the appellant had not appealed the Master's order, had not complied with it, and had adduced no evidence of his alleged impecuniosity.

The mortgagee appealed the trial judge's decision to reduce the interest rate on the mortgage and deny costs.

The Court of Appeal allowed the cross-appeal, holding that the mortgagee was entitled in law to the interest rate called for in the mortgage, and that delay in bringing the action within the limitation period did not justify a reduction.

The court also awarded costs of the trial and the appeal to the mortgagee, noting that success was no longer divided and the judgment exceeded the offer to settle.

The appellant appealed an order finding that his mother lacked capacity to grant a power of attorney, as well as a s. 140(1) order.

The Court of Appeal dismissed the arguments regarding procedural fairness and capacity, finding the trial judge's conclusions fully warranted by the evidence.

However, the Court set aside the s. 140(1) order because it was not sought on a timely basis, was not argued, and no reasons were given for it.

Leave to appeal costs was dismissed, and costs of the appeal were awarded to the respondents.

The appellant appealed the dismissal of his action against the Attorney General and a Crown Attorney.

The Court of Appeal upheld the motion judge's finding that the pleadings were inadequate, as the appellant failed to plead the material facts necessary to support allegations of the absence of reasonable and probable grounds or malice.

The appeal was dismissed with costs.

The respondent successfully sued the appellant for workplace defamation, being awarded damages and costs at trial.

On appeal, the appellant argued for the first time that the Superior Court lacked jurisdiction because the dispute arose in a unionized workplace governed by a collective agreement.

The Court of Appeal dismissed the appeal, finding that the Superior Court had concurrent jurisdiction and that the jurisdictional objection was raised too late to be entertained.

The appeal regarding costs was also dismissed.

The appellants were previously successful in their appeal to stay a libel action brought by the respondent.

The Court of Appeal awarded the appellants their costs of the appeal and the proceeding before the motion judge on a partial indemnity scale.

The parties could not agree on the quantum of costs for the motion.

The appellants sought $32,773.37.

Noting that the case involved a novel application of the real and substantial connection test in a libel context and was a matter of public interest, the court fixed the costs of the motion at a modest $7,500 inclusive of disbursements and GST.

The appellants appealed from three orders: denying the corporate plaintiff the ability to be represented by its sole shareholder, ordering security for costs against the individual plaintiff personally, and dismissing the action for failing to pay the security.

The Court of Appeal allowed the appeal, finding that the motion judge erred in denying the sole shareholder the right to represent the corporation as the criteria appeared to be met.

The court also found an error in the security for costs order because the judge failed to consider whether the individual plaintiff's explanation was frivolous under rule 56.01(1)(c).

The three orders were set aside, and the dismissal of the application was reversed.

The appellant's wife forged a power of attorney in his name to obtain mortgages from the respondents to pay off gambling debts.

The appellant, who was unaware of the fraud, argued the mortgages were void.

The motion judge granted summary judgment to the respondent mortgagees, finding the mortgages valid under the Land Titles Act.

The Court of Appeal dismissed the appeal, holding that under sections 78(4) and 155 of the Land Titles Act, the mortgages, having been given for valuable consideration and without notice of the fraud, were effective once registered.

The appellants appealed a summary judgment dismissing their claim for damages for abuse on the basis of laches and delay.

They argued the motions judge erred because laches and delay were not specifically pleaded by the respondent.

The Court of Appeal dismissed the appeal, finding that the issues were raised in the factums, fully argued, and caused no prejudice or surprise to the appellants, who had known of their claim since 1989 but waited 13 years to commence proceedings.

The appellant appealed an order regarding whether he was acting qua councillor in a suit brought against him by electors concerning his election expenses, and whether a City Council resolution to pay his legal fees was ultra vires.

The Court of Appeal agreed entirely with the motion judge's analysis and dismissed the appeal, awarding costs of $5,000 to the respondent.

Following the release of the main appellate reasons on December 24, 2002, the Court of Appeal issued an addendum granting the costs of the appeal to the appellant, fixed in the amount of $6,000.

The appellant employer appealed a trial judgment awarding the respondent employee six months' salary as reasonable notice for wrongful dismissal, as well as solicitor and client costs.

The Court of Appeal upheld the notice period, finding that while six months was high, it did not justify interference.

However, the Court allowed the appeal regarding costs, holding that based on the recent decision in Rooney v. Graham, the costs should have been awarded on a party and party scale.