Civil Litigation - Plaintiff - ONCA

The appellant appealed the dismissal of its action seeking a declaration that it was the beneficiary of a trust and a beneficial owner of a 50 per cent interest in a plaza.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that a binding trust agreement was never executed.

The court also rejected arguments regarding spoliation and hearsay, noting the trial judge was entitled to disbelieve the appellant's evidence.

The appellants appealed the dismissal of their solicitor negligence action against the respondent lawyers arising from a failed life lease project.

The appellants argued the lawyers failed to advise them of legal uncertainties regarding life leases and were in a conflict of interest.

The Court of Appeal dismissed the appeal, upholding the trial judge's factual finding that any failure to advise did not cause the appellants' losses, as they would have proceeded with the project regardless.

The court also upheld the trial judge's damages calculation, which deducted the increased value of the excavated property from the project costs.

The appellants, representative plaintiffs in a certified class action, appealed a motion judge's decision dismissing their request to amend the list of common issues to include questions regarding constructive trust, disgorgement, and waiver of tort.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that it would be unfair to add a potential new cause of action at this late stage of the proceedings.

The Court noted that the remedies of constructive trust and disgorgement remain available to the appellants at the second stage of the trial, as originally contemplated in the certification order.

The appellants appealed a trial decision regarding a loan, attempting to advance a new defence that Mrs. Dhir was not a party to the loan.

The Court of Appeal dismissed the appeal, holding that the defence was not pleaded in the statement of defence or advanced at trial, making it too late to raise on appeal.

The court also noted there was evidence from which her participation could be inferred.

The appellant, an orthopaedic surgeon, appealed a trial judgment finding him liable for medical malpractice based on a lack of informed consent.

The respondent suffered permanent sciatic nerve damage (foot drop) following a Ganz pelvic osteotomy, eventually requiring a below-the-knee amputation.

The trial judge found the surgery was performed competently but the appellant failed to adequately disclose the risk of permanent nerve damage, and that a reasonable person in the respondent's position would have refused the surgery if properly informed.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's application of the modified objective test for causation or her factual findings regarding the disclosure of risks.

The appellant appealed from a judgment declaring him a vexatious litigant under s. 140 of the Courts of Justice Act.

He argued the application judge erred by denying his request for an adjournment.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the application judge's discretionary decision, noting the appellant's motivation for the adjournment was delay and he had outstanding costs awards against him.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal adjourned the appeal, ordering that the notice of appeal and related documents must be served on the respondent personally as required by the Rules of Civil Procedure.

The settlor established a family trust for his grandchildren, appointing his three children as trustees.

A dispute arose, and two of the trustees sought to remove the third and sell the trust property.

The trial judge ordered the sale of the property to break the impasse.

On appeal, the court found that the trial judge erred in ordering the sale without the unanimous consent required by the trust deed and without evidence of benefit to the beneficiaries under the Variation of Trusts Act.

The court set aside the sale, removed the two applicant trustees due to their conduct, and left the third trustee in place.

The trial judge's costs awards against the removed trustees personally were upheld.

The plaintiffs, a special needs child and his mother, brought a proposed class action against Ontario for negligence and misfeasance in public office, alleging the government unlawfully terminated special needs agreements under section 30 of the Child and Family Services Act.

The Court of Appeal held that the statement of claim failed to disclose a cause of action.

The court found that the statutory discretion to enter into voluntary agreements did not create a private law duty of care, and the plaintiffs failed to plead specific facts demonstrating intentional wrongdoing by a public officer required for misfeasance in public office.

The appeal was allowed and the certification order was set aside.

The plaintiffs engaged the defendant as an independent contractor to provide systems engineering services to their clients.

The defendant subsequently went to work directly for one of the clients.

The plaintiffs sued for breach of fiduciary duty and breach of confidence.

After the trial, the trial judge raised new theories of liability on her own motion—duty of good faith, unconscionability, and implied contractual terms—and found the defendant liable on those unpleaded bases while dismissing the pleaded claims.

The Court of Appeal allowed the appeal, holding that it is fundamentally unfair to find liability on theories that were never pleaded and not subjected to the adversarial process.

The cross-appeal regarding fiduciary duty and breach of confidence was dismissed.

The appellants appealed the trial judge's assessment of damages arising from structural problems in a purchased property.

The Court of Appeal found that the trial judge misapprehended evidence by disregarding the 2004 sale price of the property, as a Statement of Disclosure showed the purchaser was aware of the structural issues.

The Court reassessed the damages based on the diminution of value, reducing the award to $50,000 plus consequential damages.

Consequently, the respondent's cross-appeal was dismissed, and the trial costs award was reduced to partial indemnity because the new damage award did not beat the respondent's Rule 49 offer.

The appellants appealed an order striking their claim for breach of fiduciary duty against their former solicitors.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that a breach of fiduciary duty requires a breakdown of trust and loyalty, such as dishonesty or a conflict of interest.

It does not extend to situations where only the quality of advice or representation is at issue.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed the judgment of Justice Gerald F. Day.

The Court of Appeal substantially agreed with the reasons of the lower court judge and dismissed the appeal with costs fixed at $2,500.

The appellant purchased a used truck from the respondent dealership, financed by the respondent bank.

After discovering engine problems and a rolled-back odometer, the appellant abandoned the truck and sued for fraud, seeking rescission and damages for lost earnings.

The trial judge awarded the appellant $8,000 for engine repairs but dismissed the fraud and consequential damages claims, while granting the bank's counterclaim for the balance of the loan.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings that there was no evidence of a vehicle switch or conspiracy to defraud.

The appellant appealed an order dismissing its motion for summary judgment.

The Court of Appeal quashed the appeal, finding that the order was interlocutory.

The Court noted that while the motion judge discussed the legal issue of absolute privilege attaching to a lawyer's letter, the order simply dismissed the summary judgment motion and would not bind the trial judge.

The appellant surety appealed a trial judgment enforcing a customs bond in favour of the Canada Customs and Revenue Agency (CCRA).

The appellant argued the CCRA failed to produce relevant documentation to substantiate the claim.

The Court of Appeal dismissed the appeal, finding that section 107 of the Customs Act precluded the CCRA from disclosing importer names to the surety, and that the production of summaries and a dishonoured cheque satisfied the bond's disclosure requirements.

The court varied the judgment only to correct the principal amount upon which interest was calculated.

The appellant appealed a trial judgment awarding it $1.7 million in damages for the respondent's breach of an amalgamation agreement involving a reverse take-over.

The appellant argued damages should have been assessed at a later date using a share value approach or by applying a multiplier to the respondent's asset value, which would have yielded over $8 million.

The respondent cross-appealed the 10% contingency discount and the 10% pre-judgment interest rate.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly assessed damages at the date of breach using the best available evidence (an asset valuation) because no market existed for the shares at that time, and properly exercised his discretion regarding contingencies and interest.

The appellant defaulted on a vendor take-back mortgage, leading the respondents to sell the property under power of sale.

The respondents obtained summary judgment for the shortfall of over $1.4 million.

On appeal, the appellant argued the respondents acted improvidently by listing the property for $750,000 despite an appraisal of $395,000.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant failed to provide evidence showing a higher price would have been obtained but for the alleged breach.

The appellant brought a motion to introduce fresh evidence and to amend his statement of claim on appeal.

The court granted both requests, finding that the interests of justice favoured admitting the evidence, which had been read to the motions judge but not marked as an exhibit.

The court also permitted the amendment to the statement of claim, which effectively withdrew an admission, and imposed terms to address any prejudice to the respondents.

The appellant appealed a decision granting the respondent condominium corporation relief to enforce a parking by-law and rules.

The appellant argued the by-law was invalidly passed, unreasonable, and selectively enforced.

The Court of Appeal dismissed these arguments, finding evidence supported the by-law's validity, reasonableness, and consistent enforcement.

However, the Court allowed the appeal in part regarding the quantum of parking fines, reducing the arbitrary $6,000 award to the proven amount of $2,440.