Civil Litigation - Plaintiff - ONCA

The moving party brought a motion to quash the insurers' appeal of an order denying them leave to amend their pleadings to add the defence of civil fraud.

The moving party argued the order was interlocutory and should be appealed to the Divisional Court.

The Court of Appeal held that an order refusing leave to amend a pleading to advance a new substantive defence is a final order.

Because the order foreclosed the insurers' ability to assert the distinct defence of civil fraud, the appeal properly lies to the Court of Appeal.

The motion to quash was denied.

The appellant railway company appealed a partial summary judgment dismissing its claims for ongoing coal tar contamination as an abuse of process.

The appellant had previously commenced an action in 1989 for historical and continuing coal tar migration, which was dismissed for inordinate delay and failure to preserve evidence.

The appellant commenced a new action in 2014 claiming damages for continuing migration since 2012.

The Court of Appeal dismissed the appeal, holding that the continuing tort claims were exhausted by the dismissal of the 1989 action, and allowing the 2014 action to proceed would undermine finality and bring the administration of justice into disrepute.

The moving parties sought a panel review to set aside a motion judge's order requiring them to pay security for costs within 30 days, failing which their appeal would be dismissed.

The Court of Appeal found no legal error or misapprehension of material evidence in the motion judge's discretionary decision, agreeing that the appeal lacked merit and the justice of the case supported the order.

The motion to set aside the order, and an alternative request for an extension of time to post security, were dismissed.

The appellant appealed a scheduling order made by the Superior Court of Justice.

The Court of Appeal quashed the appeal, holding that a scheduling order is an interlocutory order because it does not determine the merits of the dispute.

Therefore, the appeal should have been brought to the Divisional Court, and the Court of Appeal lacked jurisdiction.

No costs were awarded.

The appellants, out-of-province franchisors, appealed a motion judge's decision dismissing their challenge to the Ontario Superior Court's jurisdiction to hear an action brought by eight Saab dealerships, five of which were located outside Ontario.

The Court of Appeal upheld the motion judge's finding of jurisdiction simpliciter based on the appellants carrying on business in Ontario, noting that joining the out-of-province plaintiffs promoted commercial efficiency.

The Court also upheld the motion judge's forum non conveniens analysis and costs award.

The appeal was dismissed.

The appellant appealed from an order dismissing its motion to set aside a default judgment.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to properly assess the merits of the 'wrong defendant' defence, the potential counterclaim for rent and breach of trademark, and the prejudice arising from the seizure of the trademark.

The default judgment and noting of default were set aside on conditions, including the payment of costs and the return of the trademark.

The appellant doctor appealed a decision dismissing his summary judgment motion to dismiss the respondent's medical malpractice action as statute-barred.

The respondent suffered severe complications following breast reduction surgery, and the appellant continued to perform ameliorative surgeries for over a year.

The Court of Appeal upheld the motion judge's finding that under s. 5(1)(a)(iv) of the Limitations Act, 2002, the respondent did not know that a legal proceeding would be an appropriate means to seek a remedy until the ameliorative treatments concluded.

The appeal was dismissed.

The respondent school board expropriated the appellant's property to build a new secondary school.

The board later authorized a land swap with the city to facilitate a joint development on the site.

The appellant argued this triggered section 41(1) of the Expropriations Act, requiring the board to offer the property back because it was no longer needed for the board's purposes.

The Court of Appeal dismissed the substantive appeal, finding the board had not abandoned its purpose of building a school and related amenities.

However, the court allowed the costs appeal, reducing the application judge's costs award to the partial indemnity amount originally sought by the board.

The appellant appealed a summary judgment dismissing his negligence action against a surveying company regarding a boundary dispute.

The motion judge found the claim was statute-barred under the Limitations Act, 2002, as the appellant knew of the encroachment and had sufficient information to sue more than two years before commencing the action.

The Court of Appeal upheld the decision, confirming the action was out of time and rejecting the appellant's procedural arguments regarding the timing of the summary judgment motion.

The moving party brought a motion to quash an appeal from an order dismissing a motion for summary judgment.

The moving party conceded that the order did not preclude the responding party from advancing its arguments regarding s. 36(4) of the Competition Act or abuse of process as substantive defences at trial, and agreed not to advance an argument of res judicata.

Based on this concession that the order was interlocutory rather than final, the Court of Appeal quashed the appeal and awarded costs to the moving party.

The parties executed minutes of settlement requiring the respondents to pay $250,000 in instalments, with a consent judgment held in escrow.

The respondents missed the final $95,000 payment, prompting the appellant to file a writ of execution.

The respondents successfully moved for relief from forfeiture under s. 98 of the Courts of Justice Act, and the motion judge rescinded the consent judgment, granting judgment for $95,000 instead.

The appellant appealed, arguing it should have been allowed to revert to its option to continue the action.

The Court of Appeal dismissed the appeal, finding no live issue that the option could be revived after being exercised.

In a personal injury action arising from a bicycle and motor vehicle collision allegedly caused in part by unlit streetlights on a boundary bridge, a municipal defendant appealed summary judgment dismissing its crossclaim and the action against a co-defendant utility contractor.

The appeal court held that the servicing agreement and the evidence about responsibility for identifying and maintaining boundary-road streetlights were ambiguous and contradictory.

The motion judge erred by treating the parties' common understanding as determinative despite live disputes over contractual allocation of responsibility.

The claims against the contractor were restored for trial.

The appellant challenged the dismissal of an action advancing further employment-related claims against her former employer notwithstanding an earlier settlement and extensive prior litigation.

The Court of Appeal held that the action was properly dismissed on multiple independent grounds, including limitation period expiry, failure to disclose a reasonable cause of action, abuse of process, and exclusive labour-relations jurisdiction.

The court further held that the proceeding was an attempt to re-litigate issues that were or ought to have been raised in earlier proceedings and applied issue estoppel under Danyluk.

The appeal was dismissed with modest costs to the respondent.

The appellant appealed the dismissal of his claim arising from an alleged negligent police investigation of a theft and alleged misfeasance in public office.

He argued that he had entered into a contract with the police and that a special relationship had been created.

The Court of Appeal held there was no basis for either proposition, found the motion judge correctly applied the law, and declined to interfere.

The appeal was dismissed with costs to the respondent fixed at $2,500 all inclusive.

The appellant appealed a Divisional Court decision that ordered the production of an insurance policy under Rule 30.02(3).

The motion judge had originally refused production, finding the policy was sought for a collateral purpose and that uncontradicted evidence showed the deductible exceeded the claim amount.

The Court of Appeal allowed the appeal, holding that the motion judge did not make a palpable and overriding error by relying on uncontradicted affidavit evidence without reading the policy itself.

The Divisional Court's order for production was set aside and the motion judge's decision was restored.

The bankrupts appealed a Superior Court decision that lifted an automatic stay under s. 69.4 of the Bankruptcy and Insolvency Act, allowing the respondent bank to proceed with an action for fraudulent misrepresentation.

The bankrupts had continued to draw on a line of credit after the collateral mortgage securing it was discharged.

The Court of Appeal dismissed the appeal, agreeing with the appeal judge that the background circumstances could support an inference that the bankrupts' use of the line of credit amounted to a false representation or false pretence.

The appellants appealed a trial judgment regarding a gas contract dispute, arguing errors in the limitation period, mitigation, contract renewal, and costs.

The respondent cross-appealed, arguing the limitation period should not run due to fraudulent concealment.

The Court of Appeal dismissed the main appeal on the substantive issues, finding no error in the trial judge's treatment of the limitation period, mitigation, or the validity of the renewal contract.

However, the court granted leave to appeal costs and reduced the trial costs award to partial indemnity.

The cross-appeal was dismissed as the issue of fraudulent concealment was not raised at trial.

The appellants appealed a motion judge's approval of a sale by a court-appointed receiver, alleging judicial bias.

The Court of Appeal dismissed the appeal, finding no evidence to support the serious allegations of bias.

Furthermore, the court noted the appeal was moot as the properties had already been sold and the proceeds distributed to the major creditor.

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 appellant sought to recover deposit monies on the basis that they were impressed with a trust if the underlying transaction failed to close.

The court held that the appellant met neither branch of the Quistclose requirements because the monies were advanced and used as a deposit for their intended purpose.

The respondents also had no notice at the time the monies were provided that any trust obligation attached to them.

The appeal was dismissed with costs.