Civil Litigation - Defendant - ONCA

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

The appellant mortgagor brought a motion to review a single judge's order denying a stay of a Superior Court order in mortgage enforcement proceedings, and also appealed the underlying order.

The Court of Appeal dismissed both the review motion and the appeal.

The court found that Rule 37.14, which the appellant relied upon to set aside a consent judgment, did not apply as he was represented at the original hearing.

Furthermore, there was no basis to reopen the mortgage enforcement proceedings given the established default and the appellant's inability to refinance or sell the property.

ID Inc. brought a motion to quash part of an appeal by the Toronto Wholesale Produce Association (TWPA), arguing the appeal was out of time because the judgment for damages was "pronounced" earlier than the final judgment date.

The TWPA opposed and brought a cross-motion for an extension of time if necessary.

The Court of Appeal dismissed ID Inc.'s motion, finding that there was only a single judgment, not two, and therefore the appeal was not out of time.

The TWPA's cross-motion was dismissed as moot.

The appellants, Michael Taylor and The Manufacturers Life Insurance Company, appealed a judgment declining to enforce a settlement in a motor vehicle accident action.

The Court of Appeal found no error in principle or palpable and overriding error in the motion judge's exercise of discretion regarding the enforcement of a settlement under Rule 49.09.

The appeal was dismissed, and costs were awarded to the respondent.

The appellant appealed the granting of a charge against her property under s. 34(1) of the Solicitors Act.

The Court of Appeal affirmed the application judge's finding that the well-established three-step test for ordering a statutory charge was met, specifically that the appellant was unable or unwilling to pay the solicitor's fees.

The court found no palpable and overriding error in the application judge's discretionary decision, which was amply supported by the record.

The appeal was dismissed, and costs were awarded to the respondent.

The appellants sought to set aside an order dismissing their motion to stay the enforcement of certain costs orders from lower court proceedings.

However, the Supreme Court of Canada subsequently dismissed their application for leave to appeal with costs, rendering the appeal before the Court of Appeal moot.

Consequently, the appeal was dismissed as moot, and costs were fixed in favour of the respondents.

The appellant insurer appealed a summary judgment that found an "under construction" exclusion clause in a homeowner's policy did not apply to water damage.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that whether a property is "under construction" is a question of fact and that the renovations in this case were not sufficient to trigger the exclusion.

The court declined to provide a general definition for "under construction," emphasizing that exclusion clauses are construed narrowly and the insurer bears the burden of proof.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The plaintiffs moved for a stay of a Divisional Court order that reinstated the defendants' jury notices, pending their motion for leave to appeal to the Court of Appeal.

The original motion judge had struck the jury notices due to COVID-19 delays in Ottawa, but the Divisional Court overturned this, finding the decision arbitrary.

Applying the RJR-MacDonald test and Sault Dock principles, the Court of Appeal granted the stay, finding a serious question to be tried regarding the Divisional Court's interference with the motion judge's discretion, irreparable harm to the plaintiffs if their scheduled judge-alone trial date was lost, and that the balance of convenience favoured the plaintiffs.

This appeal arose from a long-standing, high-conflict family law dispute.

The appellants challenged a motion judge's order that clarified spousal support obligations, addressed the impact of bankruptcy on an equalization payment secured by a letter of credit, and apportioned trial costs.

The Court of Appeal dismissed the appeal, affirming the motion judge's clarifications that periodic support continued due to the husband's failure to exercise a lump sum option, that the letter of credit securing equalization and support created an equitable trust not extinguished by bankruptcy, and that the allocation of trial costs was appropriate.

The appellant appealed the dismissal of her defamation action following a five-day trial.

The trial judge found that while the respondent's statements were defamatory and made in the context of an employment reference, they were protected by qualified privilege.

The trial judge also found that the appellant failed to prove malice, which would have defeated the privilege.

The Court of Appeal upheld the trial judge's decision on liability, finding no palpable and overriding error.

The court also addressed the appellant's challenge to costs, granting leave to appeal costs and reducing the award by $8,275.00 to exclude costs for voluntary mediation.

This is a costs endorsement following the Court of Appeal's decision allowing the appeal of the Nottawasaga Valley Conservation Authority (NCVA) against a Divisional Court decision.

The NCVA sought costs of $77,419.86 on a partial indemnity basis for both the appeal and Divisional Court proceedings.

The court awarded reduced costs, finding the amounts sought for the leave to appeal motion and appeal hearing to be excessive relative to the Divisional Court costs.

The Gilmors were ordered to pay the NCVA $44,674.25 all-inclusive in total costs.

The appellants appealed a motion judge's decision to strike their statement of defence.

The motion to strike had been adjourned to permit the appellants to pay a long outstanding costs award or file evidence of impecuniosity.

The appellants did neither.

The Court of Appeal found no basis to interfere with the motion judge's decision and upheld the striking of the statement of defence.

The appellants were ordered to pay costs of the appeal in the amount of $4,000.00 inclusive of disbursements and applicable taxes.

The appellant, an investment advisor, appealed a trial decision dismissing his claim for additional compensation under a letter agreement.

The trial judge found the agreement ambiguous regarding its application to Capital Markets transactions and relied on the parties' subsequent conduct to conclude it did not apply.

The Court of Appeal dismissed the appeal, holding that while subsequent conduct is not part of the factual matrix, it is admissible to resolve ambiguity.

The trial judge made no extricable error of law in finding ambiguity and properly weighed the appellant's subsequent conduct, which was overwhelmingly consistent with the respondent's interpretation.

The appellants appealed a trial judgment that dismissed their claims as statute-barred and granted the respondents' counterclaim for the amount outstanding under a mortgage.

The self-represented appellant requested an adjournment to obtain counsel, which the Court of Appeal refused due to a history of delay.

The Court found no reviewable error of law or palpable and overriding error of fact in the trial judge's preference for the respondents' evidence or the calculation of the mortgage debt based on an expert report.

The appeal was dismissed with costs fixed at $5,000.

In a brief appeal book endorsement, the court addressed only the disposition of the appeal and appellate costs.

Although counsel for the appellant had agreed to pay the bank $3,000 in costs, the court held that the bank was not entitled to any costs because the appellant would have been at least partially successful on appeal.

The court also held that another responding party was not entitled to costs because no relief had been sought against him and the settlement improved his position vis-à-vis the bank.

The appeal was dismissed on consent.

The appellants appealed orders arising from a franchise rescission dispute under the Arthur Wishart Act, 2000.

The respondents had obtained partial summary judgment on rescission-related claims, and a Master fixed compensation under s. 6(6).

The appellants also sought to amend their pleading to assert equitable set-off, but the appeal court upheld the interpretation that any such amendment was confined to the still-outstanding s. 7 claims and could not reopen the already-adjudicated s. 6 claims.

The court further held that the Master's factual findings attracted deference and disclosed no misapprehension, error in principle, or palpable and overriding error.

The appeals were dismissed with fixed costs to the respondents.

The appellant appealed the dismissal of his action against his former lawyer alleging solicitor’s negligence and breach of fiduciary duty, and also sought leave to appeal a substantial trial costs award.

The court held that the appellant had led no expert evidence on the standard of care, did not fall within recognized exceptions, failed to prove causation or damages, and did not establish any fiduciary breach.

The court further upheld the trial judge’s finding that the claim was discovered no later than February 9, 2006 and was therefore barred by the applicable limitation period when commenced on July 10, 2008.

The appeal was dismissed, leave to appeal costs was refused, and appeal costs were fixed at $28,000 on a partial indemnity basis.

The appellants appealed a summary judgment decision dismissing their action as statute-barred.

The Court of Appeal upheld the motion judge's finding that the appellants knew or ought to have known the basis of their claim by April 11, 2005, at the latest.

As the action was not commenced until October 31, 2007, more than two years after the claim was discovered, the appeal was dismissed.

The plaintiffs brought actions for damages arising from a motor vehicle accident against the driver, owner, lessee, and two taverns (unprotected defendants).

One of the taverns brought a motion to determine whether, as an unprotected defendant, it was liable for the whole amount of the statutory deductibles applied to protected defendants under the Insurance Act.

The trial judge held that unprotected defendants were responsible for 100 percent of the deductibles.

The Court of Appeal allowed the appeal, holding that the Insurance Act restricts the application of the Negligence Act, and unprotected defendants are only liable for the amount by which their contribution under the Negligence Act exceeds their joint and several liability with protected defendants.