Civil Litigation - Plaintiff - 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, a lawyer and former senior advisor to the Kenyan Prime Minister, appealed the dismissal of his defamation and breach of privacy action against Refinitiv Limited and Sitel Operating Corporation.

The action stemmed from his inclusion as a politically exposed person (PEP) in Refinitiv's World-Check Database, which allegedly led to a money transfer being held, and subsequent alleged defamatory statements by a Sitel customer service agent.

The motion judge had dismissed the action, finding the appellant was properly classified as a PEP, the database statements were true and publicly sourced, and any claims against Sitel were covered by a prior release or lacked evidence of defamation.

The motion judge also awarded substantial indemnity costs due to the appellant's unreasonable litigation conduct.

The Court of Appeal found no factual or legal errors in the motion judge's decision, agreeing that the claim was meritless and upholding the costs award.

The appellant, Allen Dunford, appealed the dismissal of his action for misfeasance in public office against the Township of Otonabee-South Monaghan, which was granted on summary judgment.

Dunford alleged a pattern of bad faith dealings by the Township from 2005 onwards.

The Court of Appeal found no reversible error in the motion judge's decision, affirming that she did not misapprehend the cause of action and properly applied a holistic approach to the claims.

The Court also upheld the motion judge's discretion in not considering new particulars presented by the appellant.

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

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 moving party sought an extension of time to seek leave to appeal a $40,000 costs award arising from an unsuccessful motion to remove the responding party's counsel.

The Court of Appeal dismissed the motion for lack of jurisdiction, holding that the underlying order was interlocutory and therefore appealable only to the Divisional Court with leave.

Furthermore, the costs award was under the $50,000 threshold, which also directs the appeal to the Divisional Court.

The appellants appealed a trial judgment awarding them only $5,000 in damages against their former real estate lawyer for a title defect error.

The trial judge found the lawyer breached his duty of care but concluded the appellants' significant claims for reduction in property value, carrying costs, and business losses were not caused by the title defect, but rather by the appellants overpricing the property.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions on causation, damages, or the exclusion of expert evidence.

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.

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.

CUMIS General Insurance Company appealed a trial judgment finding that an unlicensed driver operated the respondent's vehicle without consent, either express or implied.

CUMIS argued the trial judge made palpable and overriding errors in her factual findings and failed to establish the tort of negligent entrustment.

The appellate court rejected all of CUMIS's arguments, finding no palpable and overriding errors in the trial judge's credibility assessments and factual conclusions.

The court also held that even if negligent entrustment exists in Ontario, it could not be established given the finding of no implied consent.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a trial judge's dismissal of its claims for conversion, detinue, passing off, unjust enrichment, and unlawful interference with economic interests.

The appeal concerned equipment purchased by the respondent under a licence agreement that contained a first option to purchase clause.

The appellant failed to serve written notice of its intention to purchase the equipment within the required 60-day period following termination of the agreement.

The court upheld the trial judge's dismissal, finding that the appellant's claims for conversion and detinue could not succeed and that there was insufficient evidence to support the damages claims.

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.

The appellant appealed a summary judgment dismissing its claim on a construction contract for an airport refurbishment.

The motion judge found that the respondent municipality was entitled to rely on a waiver clause signed by the appellant, which precluded compensation for delays or uncompleted work if the project was halted due to public concerns or funding withdrawal.

The Court of Appeal upheld the decision, finding ample evidence that public outcry and a superseding joint project triggered the waiver clause.

The appellants appealed an order granting summary judgment dismissing their action against a lawyer who received their cheque in trust for his client.

They argued the lawyer knew or ought to have known they relied on him to ensure the funds were disbursed in a particular manner.

The court held there was no basis to interfere with the motion judge’s factual findings that no such reliance was known or reasonably knowable to the lawyer, and that there was no evidence the monies were paid out for any unauthorized purpose.

The appeal was dismissed with fixed costs to the respondent.

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 proposed intervenor appealed the dismissal of her motion for leave to intervene in an Ontario action seeking recognition of a United States judgment against a foreign state and its security ministry under the Justice for Victims of Terrorism Act.

The Court of Appeal held that she met the intervention criteria under rule 13.01(1) because she had a contingent interest in the proceeding and might be adversely affected if the foreign judgment were recognized and enforced against limited Canadian assets.

The court further held that the motion judge erred by treating the matter as a private commercial dispute and by failing to recognize the public importance of the new statutory regime.

The proposed intervenor had a useful contribution to make, particularly on a limitations argument not raised by other parties.

The appeal was allowed and leave to intervene was effectively granted through directions permitting the filing of a factum.

The appellant surveyors prepared a reference plan that incorrectly portrayed a right of way as a straight line, failing to show a curve that circumvented a rock outcrop.

The reference plan was deposited on title.

A dispute arose between the neighbouring property owners over the use of the road.

The surveyors brought a motion to rectify the reference plan under section 160 of the Land Titles Act.

The motion judge dismissed the motion, holding that the registered title was indefeasible.

The Court of Appeal allowed the appeal, finding that a reference plan does not independently create an interest in land and that the court has jurisdiction to rectify the boundaries of the right of way.

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.