Civil Litigation - Defendant - ONCA

This is the third appeal brought by the respondent in a family law proceeding concerning equalization payments and the sale of the matrimonial home.

The appellant sought to appeal an order of eviction from the matrimonial home and a power of sale granted by the trial judge due to the appellant's intransigence in the sale process.

The appellant also appealed a costs award of $36,000.

The Court of Appeal dismissed the appeal of the eviction and power of sale order as an abuse of process, noting it was an attempt to circumvent two previous appeals that had been dismissed for delay.

The appeal was also found to be moot as the matrimonial home had already been sold.

The costs appeal was dismissed as the trial judge committed no reviewable error in awarding substantial indemnity costs based on the appellant's unreasonable conduct.

This decision concerns a motion for leave to appeal an order approving the sale of a property in receivership.

The moving parties, owners of the property, sought an adjournment to arrange financing to redeem the first mortgage and continue their affordable housing project.

The motion judge denied the adjournment and approved the sale.

On motion for leave to appeal, the Court of Appeal found that the proposed appeal did not raise issues of general importance, had little merit, and that granting leave would unduly hinder the receivership process.

The motion for leave to appeal was dismissed.

The Court of Appeal for Ontario dismissed Surefire Dividend Capture, LP’s appeal from the Superior Court’s decision denying insurance coverage for losses suffered in a Ponzi scheme perpetrated by Brenda Smith, CEO of Broad Reach Capital, LP.

The court held that the fidelity bond did not cover losses caused by fraudulent acts of a sub-advisor’s directing mind, as the bond’s language did not extend “Employee” status to such individuals.

The court also found no coverage for “Theft of Customer Property” because SDC no longer had a property interest in the funds once invested in BRC.

The trial judge’s interpretation of the bond was entitled to deference, and no reversible error was found.

The appellant, Gaetano Di Blasi, appealed a trial order declaring a berm he constructed to be in breach of municipal bylaw, authorizing the Regional Municipality of York to enter his property for remediation, enjoining him from interfering with water flow, and requiring him to pay damages in nuisance.

He also appealed a contempt finding and a $10,000 fine for failing to comply with a 2014 order to remove the berm.

The Court of Appeal found no error in the trial judge’s decision, upheld the findings, and dismissed the appeal, awarding $25,000 in costs to the respondent.

The appellant, Amtim Capital Inc., appealed the dismissal of its claim against Appliance Recycling Centers of America (ARCA) for alleged underpayment due to improper allocation of head office expenses.

The trial judge found Amtim failed to discharge its onus of proving ARCA breached the agreements or that the expense allocation was not in accordance with U.S. GAAP.

The Court of Appeal upheld the trial judge's findings, including the refusal to draw adverse inferences against ARCA for alleged disclosure deficiencies, noting Amtim's failure to pursue further production motions or utilize contractual access rights.

The appeal was dismissed, and the appellant was ordered to pay costs.

The appellant, convicted of fraud, brought two motions related to his appeal: one for document production (dismissed as redundant) and another to appoint a special commissioner under s. 683(1)(e) of the Criminal Code to inquire into alleged email deletion by police and alteration of trial transcripts, seeking fresh evidence for a stay of proceedings.

The Court of Appeal dismissed both motions, finding no credible evidence to support the allegations of obstruction of justice or abuse of process, and that the proposed inquiry would not reasonably lead to admissible fresh evidence under the Shulman test.

The appellant, Mario Oliveira, appealed two lower court decisions: the dismissal of his wrongful dismissal action due to a breach of the deemed undertaking rule, and a finding of contempt for non-compliance with injunctive orders concerning a confidential union member list.

The Court of Appeal upheld the dismissal of the wrongful dismissal action and the contempt finding.

However, it set aside the 89-day intermittent jail sentence for contempt, replacing it with a 14-day conditional sentence (house arrest), and reduced the contempt costs from $75,000 to $50,000.

The appellants, beneficiaries of an estate, appealed a Superior Court order that declared they had no interest in a property, ordered them to vacate, and required them to pay occupation rent.

Their appeal primarily argued that the motion judge erred by failing to grant them an adjournment and by providing insufficient reasons for the denial.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary decision.

The court noted that it was not the appellants' first adjournment request, they had received legal advice, and the ongoing delay prejudiced other beneficiaries of the estate.

Costs were awarded against one appellant.

This is an appeal from a summary judgment motion concerning a repudiated agreement of purchase and sale for a cottage.

The appellants challenged the motion judge's findings on mitigation of damages and the costs award.

The Court of Appeal dismissed the main appeal, affirming the motion judge's finding that the appellants failed to meet their onus to prove the respondents did not take reasonable steps to mitigate their losses, and that the motion judge did not err in her assessment of the evidence.

The Court also granted leave to appeal the costs order but ultimately dismissed the costs appeal, upholding the motion judge's application of Rule 49.10 and the award of substantial indemnity costs to the respondents, finding that an informal settlement discussion did not revoke a prior formal offer to settle.

This appeal was dismissed as abandoned due to the appellant's failure to appear for the hearing, despite being notified multiple times.

The court was also informed that the appellant had previously failed to attend his criminal trial, which led to the underlying application for habeas corpus, and that there was an outstanding warrant for his arrest.

The appellants, David, Jacqueline, and Jeremy Kaweesa, brought a motion before the Court of Appeal for Ontario to set aside an order by Paciocco J.A. The prior order had granted security for costs to the mortgagees (Sub-Prime Mortgage Corporation and Elle Mortgage Corporation) in a mortgage enforcement appeal and lifted a temporary stay on a writ of possession.

The Court of Appeal dismissed the Kaweesas' motion, finding no error in Paciocco J.A.'s application of the test for security for costs under Rule 61.06(1) of the Rules of Civil Procedure.

The court upheld the findings that the appeal was frivolous and vexatious and that the appellants had insufficient assets.

The claim regarding the stay was deemed moot as it had expired.

The defendant, Cozy Corner Bedding Inc., appealed a summary judgment that dismissed its counterclaim for equitable set-off and granted judgment to the plaintiff, 3113736 Canada Ltd. (Valle Foam), for unpaid invoices.

Cozy Corner alleged overcharging due to a price-fixing scheme.

The motion judge had ruled the counterclaim was barred by a class action release and lacked sufficient evidence.

The Court of Appeal allowed the appeal, finding that an exception in the class action release preserved the right to pursue claims in insolvency proceedings, including equitable set-off under s. 21 of the CCAA.

The Court also found the motion judge erred in concluding there was insufficient evidence of overcharging, noting Valle Foam's own admissions regarding overcharge percentages.

The summary judgment was set aside, and the matter was directed to trial.

The Royal Bank of Canada brought companion motions seeking directions in two bankruptcy proceedings.

The motions addressed whether the appellants had an appeal as of right from bankruptcy orders and, alternatively, whether the automatic stay resulting from an appeal as of right should be cancelled.

The court found that the appellants did have an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act, as the property involved exceeded $10,000 and the bankruptcy orders directly involved the disposition of assets.

However, the court granted the motion to cancel the automatic stay under s. 195 of the Act, finding that the appeals had low chances of success and that there was no prejudice to the appellants, given their history of delay and improper dealings with property.

The appellant was jogging on an indoor track at McMaster University when struck from behind by a member of the Flying Angels Running Club, suffering a serious shoulder injury requiring surgery.

At trial, no negligence was found against McMaster University or the runner who struck the appellant.

However, the Flying Angels Running Club and its coach were found negligent.

The jury determined the appellant was 40 percent contributorily negligent for failing to move to a different lane when asked to do so.

The appellant received approximately $80,000 net in damages including prejudgment interest.

On appeal, the appellant challenged four evidentiary rulings by the trial judge: the characterization of lane one as the "default lane" in the jury charge, the exclusion of an email from a track employee, the exclusion of a letter to the Ontario Ministry of Labour, and the exclusion of insurance reimbursement charts.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's evidentiary rulings and jury instructions.

The appellant appealed a default judgment obtained by the respondents in a real estate dispute.

The respondents, as purchasers, alleged that the appellant, as vendor, made negligent misrepresentations regarding property taxes in MLS listings for two properties.

The motion judge declined to set aside the default judgment.

On appeal, the appellant argued the judgment was irregularly obtained.

The Court of Appeal upheld the default judgment, finding that the statement of claim provided a sufficient basis for the judgment as it included allegations of negligent misrepresentation and a plea that the respondents would not have entered into the transactions but for the misrepresentations.

The appellants appealed a jury verdict awarding approximately $186,000 in damages for a motor vehicle accident, significantly less than their claim of over $10 million and the respondent's pre-trial settlement offer of $500,000.

The appellants argued that the jury improperly assessed the plaintiff's credibility through evidence of his criminal record and unlawful conduct, and that the jury was misled on the test for causation and the standard of proof for future damages.

The Court of Appeal rejected all arguments, finding that the trial judge properly exercised her gatekeeping function, correctly charged the jury on credibility and causation, and that the jury's verdict was reasonable.

The appellants recovered nothing after costs were set off.

The applicant sought a stay of execution of the Court of Appeal's order pending disposition of its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal had reinstated an arbitrator's multi-million-dollar damages award against the applicant for breach of a purchasing and management agreement relating to solar energy projects.

The applicant argued that the arbitrator exceeded his jurisdiction by awarding damages for lost profits.

The motion judge dismissed the stay application, finding that while the applicant met the threshold for a serious issue to be tried, the balance of convenience strongly favoured denial of the stay given the respondent's severe liquidity problems and existential risks if the stay was granted, as opposed to the applicant's substantial financial resources.

The appellants sought an extension of time to appeal a decision by Sosna J. dismissing their motion to set aside a default judgment in a mortgage action.

The respondent bank had obtained a default judgment and a writ of possession.

The appellants' appeal to the Court of Appeal was well out of time.

Although the court found that the appellants intended to appeal within the appeal period and the delay was not long, the motion was dismissed on the merits.

The appellants had not paid the mortgage in months and were merely seeking to delay execution of the default judgment through the appeal process.

Costs were awarded to the respondent.

The appellant was convicted of second degree murder for stabbing the deceased 19 times during a fight.

The appellant had armed himself with a steak knife in anticipation of a confrontation and carried it openly as he approached the deceased.

When the deceased said "you're dead," the appellant responded "bring it . . . game on." The trial judge refused to instruct the jury on the partial defence of provocation.

The Court of Appeal upheld this decision, finding that the words "you're dead" did not cause the appellant to lose his power of self-control and act on the sudden, as required by the provocation defence.

The appellant's preparation for the confrontation and his state of readiness negated any element of surprise necessary for provocation.

The appellant slipped on ice in the parking lot of an apartment building and broke his leg.

The landlord, Cemcor Apartments Inc., had contracted with Myles Property Management Inc. to clear snow and ice from the parking lot.

The appellant sued for negligence under the Occupiers' Liability Act.

The trial judge found that Cemcor had a reasonable winter maintenance policy in place and that the parking lot was adequately cleared at the time of the accident, with the appellant's fall occurring on an isolated slippery spot.

The trial judge dismissed the claim.

On appeal, the appellant challenged both the factual findings regarding the condition of the parking lot and alleged reasonable apprehension of bias based on the trial judge's numerous interventions during cross-examination.

The Court of Appeal upheld the trial judge's decision, finding no factual error and rejecting the bias allegation.