Civil Litigation - Plaintiff - ONCA

Five organizations brought motions for leave to intervene in an appeal concerning the constitutionality of provincial legislation that required the removal of bicycle lanes in Toronto.

The underlying judgment found the legislation violated section 7 of the Charter.

The motion judge granted leave to all five proposed interveners, but limited the scope of their interventions to specific issues such as the positive/negative rights dichotomy, the interpretation of recent section 7 jurisprudence, and the application of equality and child-interest principles to the gross disproportionality analysis.

The interveners were restricted to 10-page factums and brief oral submissions.

The appellant's license to practice law was revoked by the Law Society Tribunal in 2020.

After exhausting all appeals up to the Supreme Court of Canada, the appellant brought an application in the Superior Court of Justice seeking Charter declarations and reinstatement of his license.

The motion judge dismissed the application as an impermissible collateral attack on the revocation decision.

The Court of Appeal upheld the dismissal, finding that the appellant could not use section 24(1) of the Charter to seek a fresh hearing after exhausting statutory remedies, and that the Superior Court lacked jurisdiction to order reinstatement.

The appellant, Ms. Wong, appealed a lower court's finding of civil fraud against her, which arose from her misrepresentation to Aviva Insurance Company of Canada regarding who was driving during a motor vehicle accident.

The original application sought a declaration that Aviva owed her a defence, which was denied due to policy breach and civil fraud.

The Court of Appeal dismissed the appeal, affirming that Aviva had suffered a real, albeit unquantified, loss due to Ms. Wong's actions, specifically in terms of its ability to defend the main action, thereby satisfying the loss element of civil fraud.

The appellant tripped on a municipal sidewalk and fractured her wrist, but did not notify the City within the 10-day statutory period because she initially believed her injury was minor.

After learning her injury would cause permanent impairment, she retained counsel and provided notice four months post-accident.

The motion judge granted summary judgment dismissing the action, finding no reasonable excuse for the delay.

The Court of Appeal allowed the appeal, holding that the initial lack of awareness of the injury's severity constituted a reasonable excuse.

The Court further held that whether the City was prejudiced by the delay was a genuine issue requiring a trial, as the appellate record was insufficient to make the necessary findings of fact.

The appellant appealed from an order dismissing his motion to set aside a registrar's dismissal for delay.

The motion judge applied the Reid v. Dow Corning Corp. test and found that while the appellant acted with reasonable diligence in moving to set aside the order, he failed to adequately explain the litigation delay, his failure to set the action down was deliberate, and he failed to rebut the presumption of prejudice arising from the expiry of the limitation period.

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

The appellants appealed an order dealing with unpaid costs and security for costs.

The respondents raised a preliminary objection that the order was interlocutory and required leave to appeal to the Divisional Court.

The Court of Appeal agreed, finding that orders regarding unpaid costs and security for costs are interlocutory.

The appeal was quashed for lack of jurisdiction.

Following a decision on a special case in favour of the plaintiff, the parties reached a consensus on costs.

The Court of Appeal ordered costs of $15,000 inclusive of taxes and disbursements payable forthwith by Canada to the plaintiff.

The appellant appealed a summary judgment decision on liability.

The Court of Appeal allowed the appeal, finding that the motion judge did not have the benefit of the recent decision in Combined Air Mechanical Services Inc. v. Flesch.

The Court held that the 'full appreciation test' required a trial because the case turned substantially on credibility and disputed facts, including evidence of a joint venture involving street racing at excessive speeds and reckless driving.

The summary judgment was set aside and the motion dismissed.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal agreed with the reasons of the lower court judge and dismissed the appeal.

Costs were awarded to the respondents in the fixed amount of $5,000.

The appellant surgeon appealed a trial judgment finding him negligent in the performance of a mediastinoscopy, during which he unintentionally biopsied the respondent's oesophagus.

The trial judge had rejected the negligence theories advanced by the respondent's expert but found negligence on two unpleaded grounds: failure to take a smaller biopsy and failure to differentiate the oesophagus from the lymph node.

The Court of Appeal allowed the appeal, finding that the trial judge's conclusions were based on a manifestly incorrect finding of fact regarding biopsy size and inferences unsupported by the expert evidence.

The action was dismissed.

The appellant appealed an order made pursuant to a Rule 21 motion.

The Court of Appeal allowed the appeal and set aside the order, finding that the matter was not suitable for a Rule 21 determination due to numerous factual disputes and overwhelming confusion regarding the identities of the corporate parties and the tenant.

The appellant sought an adjournment of his appeal to raise a new ground of ineffective assistance of counsel, conceding that the original grounds lacked merit.

The Court of Appeal refused the adjournment and dismissed the appeal, finding no merit to the proposed ground and noting the case did not fall within the exceptional circumstances required for such a claim in civil proceedings.

The parties appealed the trial judge's costs award in a shareholder oppression and valuation proceeding.

The trial judge had awarded the dissenting shareholders substantial indemnity costs up to the date of a settlement offer, and awarded the corporation partial indemnity costs thereafter.

The Court of Appeal dismissed both costs appeals, finding no error in principle in the trial judge's exercise of discretion under s. 241(3) of the Canada Business Corporations Act.

The Court also ordered no costs for the main appeals due to divided success.

The appellant trustee was successful on appeal and sought costs against the respondent employees.

The employees argued they should be shielded from costs as public interest litigants or under the principles of the Class Proceedings Act.

The Court of Appeal rejected these arguments, finding the employees had a direct financial stake and the matter was not a class action.

The court awarded the trustee costs for the proceedings before the registrar, the Superior Court, and the Court of Appeal, totaling approximately $24,000.

The appellant appealed a trial judgment finding that the respondent suffered a 'serious impairment' under s. 267.5(5)(b) of the Insurance Act following a motor vehicle accident.

The appellant argued that the trial judge misapplied the threshold test by relying on a previous appellate endorsement that allegedly lowered the standard to only require an effect on the enjoyment of life.

The Court of Appeal clarified that its previous endorsement did not modify the established test, which requires a substantial interference with the ability to perform usual daily activities or regular employment.

Finding no error in the trial judge's application of the law or appreciation of the evidence, the appeal was dismissed.

The original representative plaintiff in a class action regarding temporomandibular joint implants sought to withdraw and substitute two new representative plaintiffs.

The defendant appealed the motion judge's order allowing the substitution, arguing it prejudiced them by expanding the class and extending the limitation period.

The Court of Appeal dismissed the appeal, holding that under s. 28(1) of the Class Proceedings Act, the limitation period is suspended for all class members upon the commencement of the action, not upon certification.

Furthermore, the substituted plaintiffs were already members of the putative class, so the class was not improperly expanded.

The appellants appealed an order striking their counterclaim, which sought punitive damages based on an independent actionable wrong akin to defamation arising from allegations in the respondent's statement of claim.

The Court of Appeal dismissed the appeal, affirming that allegations in a statement of claim are absolutely privileged and cannot form the basis of such a counterclaim.

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

The appellant insured was sued for defamation after posting messages on an internet message board.

He sought a declaration that his homeowner's liability insurer had a duty to defend him in the action.

The insurer denied coverage based on an exclusion for bodily injury or property damage caused by an intentional act.

The application judge dismissed the application, finding the exclusion applied.

The Court of Appeal dismissed the appeal, holding that the pleadings in the defamation action, which alleged intentional and malicious conduct, fell squarely within the intentional act exclusion, as the insured's intent to publish the statements necessarily involved an intent to injure the plaintiffs' reputation.

The appellant appealed an order dismissing its action for delay.

The Court of Appeal found that the motions judge erred in principle in finding prejudice due to inexcusable delay, as the prejudice alleged was general in nature and there was no evidence of missing or incapacitated witnesses.

The appeal was allowed and the order set aside, but without prejudice to the respondent to move again if the appellant failed to answer undertakings within thirty days.

Costs of the appeal and motion were awarded to the respondent.

The Court of Appeal issued a costs endorsement following an appeal.

The parties agreed that costs for both the appeal and the original application should be awarded on a partial indemnity basis.

The court awarded the appellants costs of the original application fixed at $3,210 plus disbursements and GST, and costs of the appeal fixed at $6,500 inclusive of disbursements and GST.