Civil Litigation - Defendant - ONCA

In an addendum to its earlier reasons dismissing the appeal and cross-appeal, the Court of Appeal addressed the calculation of partnership net profits for the purpose of determining the respondent's damages.

The appellants argued that notional income taxes should be deducted from amounts the trial judge ordered included in corporate income, such as diverted wages and personal expenses.

The Court rejected this argument, finding no evidence that taxes were paid on the diverted funds.

However, the Court ordered the appellants to provide Canada Revenue Agency documentation to prove actual income taxes remitted by one of the corporate defendants, which would be deducted from its net income if substantiated.

The appellant, Marnie Affleck, appealed the dismissal of her claim for negligent infliction of nervous shock and defamation against Sunrise Senior Living, Inc., Sunrise of Erin Mills, and several individuals.

The Court of Appeal upheld the trial judge’s findings, agreeing that the respondents’ actions were reasonable and that the defamation claim was not pleaded with sufficient specificity.

The court also found no error in the trial judge’s factual findings or costs award, and dismissed the appeal with costs.

The appellant, Shiu Yiu Kong, appealed the dismissal of his application for an oppression remedy under the OBCA and CBCA.

The Court of Appeal found no error in the application judge’s consideration of the statutory provisions, legal principles, or factual findings.

The court held that the appellant’s criticisms of the companies’ books and records did not amount to oppressive conduct, especially as the supporting evidence was inadmissible opinion evidence.

The real dispute was over the price and method of share purchase, which did not warrant court intervention.

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

The appellants sought to appeal an order from the Superior Court of Justice that directed the deletion of their third-party claim registered on title under the Land Titles Act.

The Court of Appeal, on its own initiative, raised the question of jurisdiction.

After hearing submissions, the court concluded that it lacked jurisdiction to hear the appeal, as section 27 of the Land Titles Act specifies that appeals from orders made by a judge under that Act lie to the Divisional Court.

Consequently, the appeal was quashed.

The Court of Appeal heard cross-motions within an appeal concerning a child's return to Bangladesh.

The mother (appellant) sought to stay a lower court order for the child's return, arguing a pending refugee claim should preclude the order, and also requested initials and a publication ban.

The father (respondent) sought security for costs for the appeal.

The court dismissed the mother's stay motion, finding no evidence of merit to the refugee claim or irreparable harm, and that the child's best interests favored return to Bangladesh.

The court granted the mother's request for initials and a limited publication ban.

The father's motion for security for costs was dismissed, as it would impede access to justice.

This is an appeal from a Superior Court decision concerning the enforceability of a non-competition covenant in an employment agreement.

The appellant employer sought to enforce the covenant against a former employee, a pharmacist, who left to work at a competing pharmacy.

The application judge found the covenant unenforceable due to ambiguity and overbreadth.

The Court of Appeal upheld this decision, affirming that the covenant's broad wording, which prohibited the employee from being "concerned with" or "interested in" any similar business, extended beyond what was reasonably required to protect the employer's legitimate interests.

The court reiterated that it cannot rewrite an unreasonable restrictive covenant.

The appellants appealed a summary judgment order dismissing their action against TD Bank and Primmum Insurance, which alleged breach of fiduciary duty related to property insurance and mortgage renewal.

They also sought leave to appeal substantial indemnity costs orders.

The Court of Appeal dismissed both the summary judgment appeal, finding no fiduciary duties were owed, the action was res judicata, and statute-barred.

The costs appeal was also dismissed, as the fresh evidence of a settlement offer was inadmissible and had no bearing on the correctness of the costs award.

The plaintiffs moved for directions regarding motions for leave to file fresh evidence, seeking a sequencing protocol to determine whether the defendants' fresh evidence was protected by litigation privilege before disclosing their own fresh evidence.

The motion judge declined to order the proposed protocol, directing the parties to perfect their appeals and schedule an appeal management conference to determine the procedure.

The motion judge also granted the plaintiffs leave to file an over-length 54-page factum, but ordered them to pay $2,000 in costs for failing to seek permission beforehand.

The appellant appealed an order giving effect to two Letters of Request from a Florida court in a defamation and conspiracy action regarding a hate mail campaign.

The appellant, an Ontario resident, argued his evidence was otherwise obtainable, the requests were unduly burdensome, lacked specificity, and resulted from a flawed foreign process.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's application of the Friction Division factors and his conclusion that the evidence was relevant, necessary, and not otherwise obtainable.

The appellants appealed the trial judge's award of costs in favour of the respondents following an unsuccessful trial.

The appellants had brought a claim for misfeasance in public office but discontinued it midway through trial after the trial judge identified that they lacked evidence for an essential element.

They sought to reopen the claim based on fresh evidence, which the trial judge rejected.

The appellants argued that no costs should be awarded due to the respondents' conduct, but this argument was based on the same evidence that had already been rejected in the misfeasance claim.

The Court of Appeal refused leave to appeal costs, finding that the trial judge had properly considered the respondents' conduct and reduced the costs award accordingly.

The appellants brought a motion seeking to appoint the Office of the Public Guardian and Trustee as litigation guardian for one appellant, to require a mental examination, to remove counsel, to extend time to perfect the appeal, and to seal evidence concerning mental health.

The motion judge addressed the sealing and confidentiality issues under the two-part test from Sierra Club v. Canada (Minister of Finance).

The court ordered redaction of solicitor-client communications and certain historical medical information as reasonable alternatives to confidentiality orders.

However, the court declined to grant a confidentiality order for current observations of the appellant's mental state, finding insufficient evidence of necessity under the Sierra Club test.

References to a non-party's health information were also redacted as unnecessary and irrelevant.

The appellant, a discharged bankrupt, appealed from an order declaring that a default judgment against him was a debt within the meaning of section 178(1)(d) of the Bankruptcy and Insolvency Act and therefore survived his discharge from bankruptcy.

The default judgment was based on the appellant's failure to comply with mortgage payment obligations.

The respondents sought to rely on extraneous evidence showing that the appellant had misappropriated trust funds paid to him by mistake.

The Court of Appeal held that the application judge erred in considering extraneous evidence not grounded in the proceedings that produced the judgment debt.

The court held that characterization of a judgment debt under section 178(1)(d) must be based on the pleadings and evidence before the court that granted the judgment, not on new evidence introduced in the bankruptcy application.

A condominium corporation appealed from a damages award of $18,000 and sought leave to appeal a costs award of $17,000 made under section 134(5) of the Condominium Act, 1998.

The respondent unit owners had leased their condominium to tenants who vandalized common elements.

The corporation claimed $33,381.28 in damages and $52,637.56 in costs.

The application judge found certain repair expenditures disproportionate and reduced the damages award.

The Court of Appeal allowed the appeal, finding the application judge erred in assessing security camera installation costs and in conflating two distinct types of costs under the Act.

The damages award was increased to $25,458 and the costs award was increased to $34,000.

This is a costs endorsement following the Court of Appeal's decision allowing an appeal and setting aside an order made at trial.

The appellant was awarded costs of the appeal fixed at $10,000 all inclusive.

The court declined to determine costs of the motion below, instead leaving that matter to the trial judge to decide after the trial resumes and all outstanding issues have been adjudicated upon, taking into account the result on appeal and any Rule 49 offers.

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, 407 ETR, appealed a motion judge's decision regarding the application of the Limitations Act, 2002 to unpaid toll debts.

The Court of Appeal held that a civil action to collect unpaid tolls is not an 'appropriate means' under s. 5(1)(a)(iv) of the Limitations Act until the statutory licence plate denial process has run its course and the debtor's vehicle permit expires.

The Court also held that a 15-year limitation period in a transponder lease agreement is enforceable under s. 22(3) of the Limitations Act, even though it is a consumer agreement, because s. 22(3) permits parties to extend the limitation period.

The appeal was allowed.

The appellants appealed a jury's damages award of nearly $1 million following a motor vehicle accident where liability was conceded.

The appellants argued the trial judge improperly interfered by questioning witnesses to assist the plaintiff's case, unfairly diminished the defence's position in the jury charge, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding the trial judge's questions were largely for clarification and non-confrontational, noting that experienced trial counsel did not object.

The court also found the jury charge was fair and balanced, and saw no basis to interfere with the damages award.

The appellants appealed a summary judgment dismissing their action against the municipality for a motor vehicle accident on a snow-packed road.

The Court of Appeal found the motion judge erred in granting summary judgment, as the municipality did not put causation in issue and there was conflicting evidence regarding whether it met its standard of care under the Municipal Act.

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

The appellant appealed a finding of liability after the respondent tripped and fell over pipes left on the sidewalk in front of the appellant's house.

The pipes had been left for five days, contrary to the City of Toronto's by-laws for special collection.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion that the appellant breached the standard of care and materially contributed to the injuries was supported by the evidence.

The appellant insurer appealed a decision finding that an unsigned OPCF 28A Excluded Driver Endorsement did not amend the contract of insurance to exclude coverage for a driver.

The Court of Appeal dismissed the appeal, agreeing with the application judge that while the signature of the insured on the form is an evidentiary rather than a legal requirement, there must be an agreement between the insurer and insured to amend the contract.

The application judge had ample evidence to find that, in the absence of a signed form, the insured had not agreed to the amendment.