Civil Litigation - Plaintiff - ONCA

The appellant software company appealed the dismissal of its claim that the respondent breached a distribution agreement by copying the features and functionality of its software to create a derivative work.

The Court of Appeal upheld the trial judge's factual findings that no copying occurred and that the respondent's use of a marketing presentation was authorized.

The Court also found no error in the trial judge's evidentiary rulings, including the exclusion of an omnibus package of documents under the party admissions exception to the hearsay rule and the exclusion of an expert report that lacked necessity.

The appeal was dismissed.

The appellants, owners of a dental clinic, appealed the dismissal of their action against a former independent contractor dentist who left to start his own practice.

The appellants alleged conversion, improper solicitation of patients and employees, appropriation of confidential information, and breach of fiduciary duty.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the dentists carried on independent practices, the departing dentist only contacted his own patients to fulfill professional obligations, and the patient information accessed was not confidential.

The court also rejected claims regarding breach of fiduciary duty and the contractual duty of good faith.

The appellant appealed a summary judgment ordering it to pay $338,984.20 in unpaid licence fees for sports fields that were closed or restricted due to COVID-19.

The appellant argued the agreements should be interpreted as 'pay-if-available', while the respondent argued payment was required for bargained-for times regardless of use.

The Court of Appeal upheld the motion judge's decision, finding no extricable errors of law or palpable and overriding errors in her application of contractual interpretation principles.

The appeal was dismissed with costs.

The appellant municipality appealed a trial judgment awarding the respondent approximately $995,000 in damages plus $921,508 in costs for injuries sustained while riding a bicycle on a recreational path.

The respondent's bicycle struck an exposed metal bracket from a removed bollard, causing her to fall and sustain a brain injury.

The trial judge found the municipality solely liable under the Occupiers' Liability Act and awarded damages for lost income.

The Court of Appeal dismissed the appeal, rejecting arguments regarding misinterpretation of the Act, failure to apply the but-for test, lack of jurisdiction regarding lost income damages, and failure to find contributory negligence.

The court also denied leave to appeal the costs award.

The appellants (lawyers) appealed a judgment finding that they had agreed to represent the respondent on a pro bono basis and ordering them to repay funds improperly applied to legal fees.

The Court of Appeal dismissed the appeal, finding that the application judge made no errors in allowing the matter to proceed by application, in finding that the retainer was pro bono, or in resolving ambiguity in the retainer in favour of the client.

The court also rejected the appellants' argument that the application judge's conduct raised a reasonable apprehension of bias.

The appellant appealed a summary judgment declaring that a May 2014 agreement between the parties was a binding contract and ordering its rectification to remove a clause requiring a future formal agreement.

The Court of Appeal upheld the application judge's findings that the parties' conduct demonstrated an intention to be bound and that the formal agreement clause was included by mutual mistake.

The appeal was dismissed with costs awarded to the respondent.

The deceased, a non-swimmer, drowned in Lake Simcoe while visiting the respondents' cottage.

The appellants brought an action in negligence and negligent misrepresentation, alleging the respondents failed to warn the deceased of the lake's dangers and falsely represented that the lake was safe and shallow.

The motion judge dismissed the action on summary judgment, finding no special relationship or duty of care.

The Court of Appeal upheld the dismissal, agreeing that the respondents did not control the lake, did not create a risky situation, and owed no duty to warn the deceased of obvious dangers removed from their property.

The appellant physician appealed a partial summary judgment order in a medical malpractice action arising from the delayed diagnosis of a brain tumour.

The appellant had admitted breach of the standard of care and causation, leaving only contributory negligence and the specific list of injuries to be determined.

The Court of Appeal dismissed the appeal, finding no denial of procedural fairness, no error in the burden of proof regarding contributory negligence, and no error in the motions judge's listing of specific injuries based on uncontradicted expert reports.

The plaintiff brought a proposed class action for the common law tort of intrusion upon seclusion after hospital staff improperly accessed patient records.

The defendants moved to strike the claim, arguing that the Personal Health Information Protection Act (PHIPA) constitutes an exhaustive code that ousts the Superior Court's jurisdiction.

The Court of Appeal dismissed the appeal, holding that PHIPA does not create an exhaustive code.

The Act's language, its highly discretionary review procedure tailored for systemic issues, and its explicit contemplation of other proceedings indicate that the legislature did not intend to preclude common law claims for breach of privacy.

The appellants were involved in a rear-end motor vehicle collision and sued for personal injuries.

At trial, the judge failed to instruct the jury that the evidentiary burden shifts to the defendant in a rear-end collision.

Furthermore, the trial judge permitted the respondents to introduce extensive surveillance evidence that had not been disclosed in an affidavit of documents, leading to a trial by ambush.

The Court of Appeal allowed the appeal, substituted a finding of liability against the respondents, and ordered a new trial on the issue of damages due to the severe prejudice caused by the undisclosed surveillance evidence.

The appellant appealed a decision dismissing her motion to add her co-plaintiff as a party defendant in a motor vehicle accident claim.

The Court of Appeal dismissed the appeal, finding that the appellant should have known of the co-plaintiff's potential liability years earlier when the statement of defence and counterclaim was delivered.

The motion to add the party was brought too late.

The appellant challenged summary judgment dismissing her negligence claim against the respondent physician.

The Court of Appeal held that, even assuming the respondent could be sued in negligence and owed a duty of care, there was no evidence from which a trier of fact could find that the respondent fell below the applicable standard of care.

A possible error in diagnosing the source of the appellant's problems was not, without more, evidence of breach of the standard of care.

The appeal was dismissed, and appeal costs of $2,500 inclusive were awarded to the respondent if demanded.

The appellants, former employees of CMHC, sought to certify class proceedings claiming that CMHC breached its duties by failing to partially terminate its pension plan and distribute the surplus to them after a workforce downsizing.

The motion judge and Divisional Court refused to certify the common issues, finding no viable cause of action.

The Court of Appeal dismissed the appeal, holding that under the Pension Benefits Standards Act, 1985, the court lacks jurisdiction to order an employer to partially terminate a pension plan or to award damages premised on a partial termination.

The court also upheld the refusal to certify a misrepresentation claim and the denial of costs out of the pension fund.

The appellant appealed from a Divisional Court order dismissing an appeal from a Master's refusal to grant an extension of time to serve a notice of action and statement of claim.

The appellant had delayed service by approximately 30 days for tactical reasons.

The Master refused the extension, finding prejudice to the respondent due to the 13-year lapse since the relevant events and the destruction of documents.

The Court of Appeal allowed the appeal, holding that the Master erred in law by failing to distinguish between prejudice caused by the passage of time since the events and prejudice caused by the delay in service.

As the 30-day delay in service caused no prejudice, the extension was granted.

The appellant, an unsecured judgment creditor of the respondent's husband, appealed an order setting aside the transfer of the matrimonial home from the respondent to her husband.

The motion judge had found the transfer was void due to undue influence and, alternatively, that the husband held the property in trust for the respondent.

The Court of Appeal allowed the appeal in part, holding that the finding of undue influence could not stand because it was not pleaded, depriving the appellant of procedural fairness.

However, the Court upheld the finding that the respondent did not intend to gift the property and held an interest by way of resulting or constructive trust, remitting the matter to determine the extent of that interest.

The appellants appealed an order refusing to grant relief nunc pro tunc.

The Court of Appeal allowed the appeal, noting that the application judge appeared to have treated the failure to obtain leave as a nullity rather than a mere irregularity.

Finding no basis on the record to refuse the order, the Court granted the order nunc pro tunc.

The appellants appealed the dismissal of their action for negligent misrepresentation against a financial institution and its vice-president.

The appellants alleged the vice-president failed to warn them about a third party's criminal conviction for fraud during a meeting.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the vice-president was unaware of the conviction, did not provide financial advice, and made remarks that amounted to mere puffery upon which reliance was unreasonable.

The appellant appealed the dismissal of her slip and fall claim following a jury trial.

She argued the trial judge erred by failing to discharge the jury after the respondents' counsel made allegedly prejudicial comments in his closing address regarding the credibility of independent witnesses.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion to retain the jury and provide a correcting instruction, and that the jury's verdict would inevitably have been the same given the evidence.

The appellant invested in limited partnerships marketed as tax shelters and made monthly interest payments on loans used to purchase the units.

The partnerships were later revealed to be a sham, and Revenue Canada disallowed the appellant's tax deductions.

The appellant sued the respondent accounting firm for negligence, alleging they breached the standard of care for a review engagement by failing to include a 'going concern' note in the financial statements, which he claimed would have prompted him to stop making interest payments earlier.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the accountants met the standard of care for a review engagement and that, even if a going concern note had been included, the appellant would not have noticed it or acted upon it.

The appellant appealed an award made by the trial judge.

The Court of Appeal found that it was open to the trial judge to make the findings she did and that there was no basis to interfere with the award.

The appeal was dismissed with costs fixed at $1,000.