Civil Litigation - Defendant - ONCA

The appellant appealed the dismissal of his motion to set aside a default judgment obtained by the respondent credit card company for unpaid charges.

The motion judge applied the Mountain View factors and found that all but one weighed against the appellant, including a lengthy unexplained delay in bringing the motion and a lack of plausible excuse for the default.

While the motion judge accepted the appellant's proposed defence had an air of reality, she found it weak and insufficient to overcome the other factors.

The Court of Appeal found no basis for appellate interference, holding the motion judge properly exercised her discretion in weighing the factors holistically.

A law firm appealed an application judge’s decision interpreting a contingency fee retainer agreement and rejecting its claim to a share of damages awarded on appeal.

The client had retained new counsel for the appeal, which resulted in a substantial damages award after an unsuccessful trial.

The firm argued it was entitled to fees under the retainer or alternatively on a quantum meruit basis.

The Court of Appeal held that the retainer expressly limited fee entitlement to damages recovered by settlement or judgment at trial and did not include recovery obtained on appeal.

The court also held that quantum meruit relief was unavailable where the parties had expressly defined the circumstances of payment.

The appeal was dismissed.

The appellant sought a declaration of beneficial ownership in a condominium unit, claiming the respondents wrongfully terminated a Reservation Agreement without reasonable notice.

The Court of Appeal dismissed the appeal, finding that the reasonable notice argument was not properly raised before the application judge or in the appeal factum.

Furthermore, the court held that the appellant's persistent refusal to complete the purchase and his failure to maintain communication negated any claim of insufficient notice regarding the agreement's termination.

The appellant abandoned its appeal, and the respondent sought substantial indemnity costs.

The appellant challenged the court's jurisdiction to award costs for an abandoned appeal and proposed a lower partial indemnity amount.

The Court of Appeal affirmed its jurisdiction under s. 131 of the Courts of Justice Act, finding that Rule 61.14 did not displace this discretion.

The court awarded the respondent partial indemnity costs, finding substantial indemnity was not justified.

The Children’s Aid Society brought a motion to quash a second appeal by the mother in a child protection matter.

The appeal concerned a temporary order that had since expired and was therefore moot.

The court found no reason to exercise its discretion to hear the appeal, as it would not advance the child's interests and ongoing factual issues belonged in the Ontario Court of Justice.

The motion to quash was granted.

This is a costs endorsement from the Court of Appeal for Ontario.

The appellant, Beth Ann Markowski, was ordered to pay the respondents, Dwayne David Verhey and Kathleen Anne Verhey, costs fixed at $15,000, inclusive of HST and disbursements, following an appeal from a Superior Court of Justice order.

The appellant, a refugee in Canada, sued his former Kuwaiti employers and others for damages arising from alleged torture and conspiracy in Kuwait.

The motion judge stayed the action for want of jurisdiction, finding no real and substantial connection to Ontario and declining to apply the forum of necessity doctrine.

The Court of Appeal dismissed the appeal, holding that the motion judge made no error in principle and his discretionary decision, based on a lack of cogent evidence supporting the appellant's claims of exceptional circumstances, was entitled to deference.

This appeal concerned the enforceability and priority of a judgment creditor's writ of seizure and sale against a beneficial interest in land held by a bare trustee under an unregistered trust agreement.

The appellant, a judgment creditor of Fortress Wismer (beneficial owner), sought declarations that its writ was binding on Pace Mark (registered owner/bare trustee) and had priority over subsequent advances under a previously registered construction financing charge held by the respondents (Firm Capital and MarshallZehr).

The Court of Appeal dismissed the appeal, affirming that the Execution Act is procedural and does not grant substantive rights to judgment creditors beyond seizing the debtor's interest.

The court held that the writ did not bind the legal owner (Pace Mark) and that actual notice of the writ did not grant priority over prior registered charges under s. 93(4) of the Land Titles Act, as that section does not apply to execution creditors.

Appeal from a trial judgment in a fraudulent conveyance action.

The trial judge found the appellants liable for participating in a civil conspiracy to defraud the respondent and to prevent her from realizing on a judgment against one of the defendants.

The trial judge awarded judgment against one defendant in the amount of $175,000 and against two other defendants in the amount of $60,000.

The appellants challenged the trial judge's findings regarding the scope of the proceedings, the facts concerning monies received, and their distribution.

The Court of Appeal upheld the trial judgment, finding the conspiracy finding was supported by the record and that the trial judge had broad remedial authority under the applicable legislation.

The appellant appealed an order of the Superior Court of Justice denying leave to appeal to the Divisional Court.

The Court of Appeal quashed the appeal, holding that while there is limited authority to review a decision denying leave to appeal to the Divisional Court, that authority lies with the Divisional Court, not with the Court of Appeal for Ontario.

The court declined to award costs, noting that the respondent had supported hearing the appeal and the offer made was relevant to the merits of the underlying issues rather than to costs.

The appellant appealed from an order of the Superior Court of Justice dismissing two related proceedings and striking out his statement of defence in a third proceeding arising from an aborted real estate transaction in 2004.

The appellant had accumulated multiple costs orders and failed to meet a 60-day deadline to pay outstanding costs.

The Court of Appeal allowed the appeal on the condition that the appellant pay all outstanding costs within 30 days, finding that dismissal without notice to the appellant regarding one of the actions was improper and that a trial on the merits was preferable.

The appellants appealed a wrongful dismissal judgment awarded by the trial judge in favour of the respondent.

The Court of Appeal upheld the trial judge's decision, finding no error in the award of damages for wrongful dismissal.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a summary judgment dismissal of her negligence action against a lawyer and his law firm.

The appellant alleged the respondent lawyer negligently counselled her to accept an improvident settlement of a motor vehicle accident tort claim and failed to report two other settlements to the Ontario Disability Support Program.

The motion judge found the settlement was not improvident but rather favourable to the appellant and in her best interests, and found no negligence in the failure to report the settlements to ODSP.

The Court of Appeal found no error in the motion judge's conclusions and dismissed the appeal.

The appellant commenced an action in small claims court for breach of contract and subsequently filed a duplicative claim in superior court with additional claims.

The trial judge struck out the entire superior court action as frivolous, vexatious, and an abuse of process under Rule 2.1, finding that the appellant had not followed proper procedure to transfer the small claims action and was attempting to litigate the same matters in two courts simultaneously.

The Court of Appeal upheld the dismissal, finding no error in the trial judge's decision.

The appellant appealed an order from the Superior Court of Justice dated June 27, 2017.

The Court of Appeal found that the appeal was not within its monetary jurisdiction and transferred the matter to the Divisional Court.

Costs were fixed in favour of the respondent.

An appeal from a Superior Court order directing the transfer of ownership of a motor home from a debtor to a purchaser.

The appellant, appearing self-represented, sought an adjournment to obtain counsel and filed an application to introduce fresh evidence regarding a property purchase from 1979 and requesting transfer of the matter to a Metis Clan Mother.

The Court of Appeal dismissed both the adjournment request and the application for fresh evidence, finding the proposed evidence would not have affected the result.

The appeal was dismissed with costs awarded to the respondents.

The appellants appealed a trial judgment upholding a Sharia Law-based arbitration award rendered in Iran regarding a property dispute between brothers.

The trial judge found that the appellants had clearly agreed to be bound by the arbitrator's judgment, all four conditions for a binding Sharia Law ruling had been met, and the appellants were estopped from relitigating the same issues in Ontario.

The appellants argued the International Commercial Arbitration Act should apply, but the trial judge found the application was out of time and, in any event, there was no unfairness in the arbitral proceeding.

The Court of Appeal upheld the trial judgment, finding no error and deferring to the trial judge's factual findings.

This is an amended endorsement from the Court of Appeal for Ontario modifying a prior costs award.

The appellants requested an increase to the costs awarded in the court's endorsement of April 21, 2017, with the respondent not opposing the modification.

The court increased the costs awarded to the appellants to $8,500 for fees plus $1,539 for disbursements plus HST.

The appellant appealed the dismissal of part of its application for relief arising from a fire at an adjoining semi-detached property.

The appellant sought recovery of losses caused by the fire and subsequent conduct of the respondent and its predecessor.

The key issue was whether the respondent, having purchased the damaged property several months after the fire, became liable for damages caused to the appellant's property prior to the respondent's acquisition.

The Court of Appeal upheld the application judge's decision, finding that the respondent had no involvement in and could not be responsible for damages accrued before it acquired the property.

The court also reduced the respondent's costs award on appeal.

The appellant's personal injury action was administratively dismissed for delay.

An order was obtained setting aside the dismissal on terms, but the appellant failed to take the required procedural steps or have the order entered.

Years later, the appellant moved to vary the terms of the order.

The motion judge dismissed the motion and stayed the action, finding extreme, unexplained delay and inferred prejudice to the respondents.

The Court of Appeal upheld the decision, finding no error in the motion judge's application of the Reid factors or his conclusion that the delay was unexplained and prejudicial.