Civil Litigation - Plaintiff - ONCA

The Ontario Court of Appeal dismissed the appeal of Robert Paul Ireland from a judgment declaring his Facebook posts defamatory of the Ontario Federation of All Terrain Vehicle Clubs, ordering their removal, and enjoining further defamatory posts.

The court found no procedural unfairness or error in the application judge’s decision, holding that Mr. Ireland’s failure to file a notice of appearance precluded him from participating in the application, and that the Federation’s courtesy in providing him with information did not create further obligations.

The court also rejected arguments regarding service and limitations, and found no reviewable error in the application judge’s findings on defamation and available defences.

The appellant appealed a trial decision ordering specific performance of an oral agreement to sell land to the respondent for $4.1 million.

The appellant argued the oral agreement was unenforceable under s. 4 of the Statute of Frauds, contending the detrimental reliance aspect of the doctrine of part performance was not met because the respondent's only obligation was to pay the purchase price, which was tendered but refused.

The Court of Appeal dismissed the appeal, finding the trial judge did not err in concluding the respondent irremediably carried out its obligations to its detriment by taking all necessary steps to close the transaction while the appellant stood by.

The appellant appealed the dismissal of his claims for adverse possession or a prescriptive easement over parts of the respondents' neighbouring cottage property, which he had historically used to access Lake Erie.

The Court of Appeal upheld the trial judge's findings that the appellant's use of the lands was with tacit permission as an act of good neighbourliness, rather than acquiescence, and that the easement was not reasonably necessary given alternative access routes.

The court also affirmed the dismissal of the adverse possession claim, as the appellant failed to establish an intention to exclude the true owners.

The appeal was dismissed with costs.

The appellant purchased a commercial condominium unit under power of sale proceedings.

The respondents, who operated a Hindu temple in the unit, sought to enforce an unregistered option to purchase contained in their lease with the previous mortgagee in possession.

The motion judge granted specific performance, allowing the respondents to purchase the unit for $350,000.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider whether the appellant was a bona fide purchaser for value without notice under the Land Titles Act.

The matter was remitted for a trial on this issue.

The appellants appealed a summary judgment granting the respondents $605,000 in damages for the anticipatory breach of an agreement of purchase and sale for a residential property.

The appellants argued the motion judge erred in accepting the respondents' expert appraisal of the property's value and in not sending the matter to trial due to competing expert opinions.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's preference for the respondents' expert, who followed accepted methodologies, nor in the determination that the respondents reasonably mitigated their damages by purchasing a comparable property on the assessment date.

The appellants contracted with the respondent to repair fire damage to their property.

The project was overseen by a third party who fraudulently requested and retained personal payments from the appellants.

The trial judge found the appellants liable to the respondent for the outstanding contract amount, concluding the third party lacked actual or ostensible authority to receive personal payments on the respondent's behalf.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's application of the governing principles of ostensible authority.

A long-serving McDonald's restaurant manager was constructively dismissed when offered a demotion to first assistant with meaningfully inferior benefits or termination.

The trial judge awarded damages based on a 20-month notice period (inclusive of statutory entitlements) representing approximately 20 years of service, accounting for a service credit letter.

The Court of Appeal upheld the decision, finding constructive dismissal, no failure to mitigate by refusing the demotion, and proper calculation of the notice period.

The court clarified that employment income earned during the statutory entitlement period is not deductible as mitigation, and that supplementary employment income that could have been earned concurrently with the original employment is also not deductible.

The appellant appealed a libel judgment arising from nine online blog posts published during and after a human rights tribunal proceeding.

The Court of Appeal upheld the trial judge’s findings that multiple statements were defamatory, that the appellant acted with malice, and that malice defeated any otherwise available fair comment defence.

Although the court held that describing the respondent as an anti-Semite was opinion rather than fact, that error did not affect the outcome because the malice finding remained dispositive.

The court also upheld the damages award of $50,000 in general damages and $30,000 in aggravated damages, together with appeal costs to the respondent.

The appellant, Ontario Electricity Financial Corporation, appealed a decision regarding the calculation of amounts payable to the respondent non-utility generators under long-term power purchase agreements.

The dispute centered on whether a new government regulation reallocating the Global Adjustment Mechanism (GA) altered the calculation of Total Market Costs (TMC) under the agreements.

The application judge found that the new GA calculation was inconsistent with the definition of TMC, which required costs to be allocated pro rata to consumption.

The Court of Appeal dismissed the appeal, finding that the application judge did not decide the case on an unargued issue, made no palpable and overriding factual errors, and properly interpreted the agreements without improperly implying a term.

The appellant sought an adjournment, which was refused.

The Court of Appeal quashed the appeal for lack of jurisdiction, noting that although the original Superior Court action claimed a higher amount, it was settled together with a small claims court action for a global amount within the jurisdiction of the small claims court.

Therefore, any appeal lies to the Divisional Court.

Costs of $2,000 were awarded to the respondents.

The appellant appealed a trial judgment finding it liable for breach of contract and breach of warranty regarding a roof installation.

At trial under the simplified procedure, the appellant withdrew its non-suit motion and elected to call no evidence.

The trial judge accepted the respondent's evidence that the roof leaked persistently within the 10-year warranty period and that the appellant failed to correct the problem.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of evidence, causation, limitation period, or damages.

The appellant challenged a trial judgment in a contractual compensation dispute involving a consulting services agreement.

The Court of Appeal rejected arguments based on alleged fiduciary breach, amendment of the agreement by later invoices, acquiescence, and breach of good faith, holding that the pleaded fiduciary theory did not establish compensable loss and that no amendment to the compensation terms was proved.

The court further held that acquiescence was unavailable against a legal claim for contractual compensation, and that estoppel had neither been pleaded nor pursued.

The appeal was dismissed with costs.

The respondent moved to quash the appellant's appeal on the basis that it should have been brought in the Divisional Court.

The appellant moved to quash or adjourn the respondent's motion, alleging improper service, and also moved to review an order of a single judge.

The Court of Appeal dismissed the appellant's motion regarding service, finding she was properly served and prepared.

The Court granted the respondent's motion to quash the appeal, noting that section 171.16(1) of the Cooperative Corporations Act directs appeals to the Divisional Court.

The appellant's motion to review the single judge's order was dismissed as moot.

The appellants appealed an order granting partial summary judgment to the respondent condominium corporation for unpaid common expense charges (condo fees).

The appellants argued that the claim for arrears should not have been separated from their counterclaims and set-off claims, which were directed to trial.

The Court of Appeal dismissed the appeal, holding that section 84(3)(b) of the Condominium Act, 1998 requires unit owners to pay common expenses regardless of any other claims between the parties.

The motion judge correctly found no genuine issue requiring a trial regarding the arrears and properly ordered the release of trust funds to partially satisfy the judgment.

The appellants abandoned their appeal.

On consent, the Court of Appeal for Ontario dismissed the appeal as abandoned without costs.

The respondent's home was destroyed by fire, and she claimed against her insurer, the appellant, for the loss of the home, contents, jewelry, and a large fine art collection.

The insurer denied coverage, alleging arson and material misrepresentation in both the application and the proof of loss.

The trial judge rejected the insurer's defences and awarded over $4.5 million in damages plus punitive damages.

On appeal, the Court of Appeal upheld the trial judge's findings on the application misrepresentation and the application of s. 124 of the Insurance Act to the insurance binder.

However, the Court allowed the appeal and ordered a new trial restricted to the proof of loss, finding that the trial judge committed reversible error by failing to explain how he resolved significant credibility issues regarding the respondent's evidence of her fine art losses.

Following the dismissal of the appellant's appeal regarding the right of limited partners to vote on the election of a new general partner, the parties were unable to agree on costs.

The Court of Appeal fixed costs on a partial indemnity basis, awarding $17,000 to Chalmers, $8,000 to the liquidator, and $5,000 to the respondent, plus disbursements and GST, all payable by the appellant.

The Liquidator of the Christian Brothers of Ireland in Canada appealed a motions judge's refusal to approve a $495,495 premium on the legal fees of its counsel, WeirFoulds LLP.

The law firm had acted on a contingency-like basis when the estate became insolvent, successfully recovering $19 million for the estate to compensate victims of child abuse.

The Court of Appeal allowed the appeal, finding that the motions judge erred by failing to consider the significant financial risk assumed by the law firm, the Liquidator's business decision to approve the premium, and the non-opposition of the victims' representative counsel.

The premium was deemed reasonable and approved in full.

The appeal concerned whether guarantors could rely on an improvident sale defence despite guarantee language permitting the secured creditor to deal with securities as it saw fit.

The court held that clauses purporting to eliminate guarantors' rights must be clearly worded, and ambiguous broad-form guarantee language is construed against the drafting creditor.

In light of the creditor's conceded improvident sale and the requirement under Part V of the Personal Property Security Act that the secured assets be disposed of in a commercially reasonable manner as against the principal debtor, the guarantors were not barred from advancing the defence.

The summary judgment against the guarantors was set aside and the bank's motion was dismissed.

On an appeal from summary judgment enforcing three personal guarantees in favour of a bank, the appellant argued that representations by the bank's representative limited or altered his obligations under the guarantees.

The court held that the alleged representations concerning the $50,000 and $35,000 guarantees did not raise a genuine issue for trial because they were contradicted by the documents and the surrounding circumstances.

However, the affidavits concerning the $6,000 guarantee disclosed a genuine issue for trial because both sides acknowledged circumstances suggesting that guarantee may have been intended to apply only to a specific Visa debt.

The appeal was allowed in part and the default judgment was amended to exclude enforcement of the $6,000 guarantee pending trial.