Civil Litigation - Plaintiff - ONCA

A case management conference was held to set the timetable for two grouped appeals arising from a decision certifying a class action against the Province of Ontario but declining to certify it against 49 Children's Aid Societies regarding the use of 'Birth Alerts'.

The appeals will be heard by a five-judge panel to consider whether the court should depart from the Ragoonanan principle.

The case management judge set the schedule for responding materials, intervention motions, and factums.

This appeal concerns the calculation of damages in a motor vehicle accident case involving statutory accident benefits (SABs) deductions, prejudgment interest rates, and statutory deductibles.

The plaintiff was injured in a 2008 collision caused by an impaired driver.

At trial, a jury awarded $220,000 in compensatory damages, but after deductions for SABs and the statutory deductible, the trial judge reduced the judgment to $34,000.

The appellate court addressed three key issues: (1) whether SABs for income replacement should be deducted from both past and future income loss awards; (2) whether punitive damages should have been put to the jury; and (3) the temporal application of amendments to prejudgment interest rates and statutory deductibles.

The court also addressed the defendant's cross-appeal regarding HKHM benefits deductions and the statutory deductible amount.

The appellant appealed the dismissal of her action against the respondent bank for allegedly negligently negotiating a cheque for $35,518.95.

The cheque was made payable jointly to the appellant and a property management company.

The trial judge found that the bank acted properly in negotiating the cheque, which was endorsed by both payees and deposited into the account of the presenting payee.

The Court of Appeal found no error in the trial judge's findings of fact or application of the law and dismissed the appeal.

The appellant appealed the dismissal of her action against her former co-operative housing provider, its lawyers, a court employee, and a Landlord and Tenant Board member.

The motion judge had dismissed the action under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process.

The Court of Appeal upheld the dismissal, finding the action was an attempt to re-litigate her eviction and rent subsidy proceedings, and that the claims against the lawyers, court employee, and Board member were bound to fail due to lack of duty of care and statutory immunity.

The appellants' action was administratively dismissed for delay after their solicitors failed to receive a status notice sent to the wrong address.

The motion judge refused to set aside the dismissal, finding the appellants failed to adequately explain the delay or prove a lack of prejudice to the respondent.

The Court of Appeal allowed the appeal and reinstated the action, holding that the motion judge failed to give sufficient weight to the non-receipt of the status notice and erred in his assessment of prejudice by ignoring the respondent's own passivity in the litigation.

The respondent in a proposed class action moved to strike the appellants' reply factum filed on a motion for leave to appeal.

The Court of Appeal granted the motion, finding that the respondent's factum did not raise any new issues but was entirely responsive to the appellants' factum.

Under Rule 61.03.1(11), a reply factum is only permitted if the responding party raises an issue on which the moving party has not taken a position.

The appellant appealed a Superior Court judgment to the Court of Appeal.

The Court of Appeal determined it lacked jurisdiction to hear the appeal because the amount in issue was less than $50,000.

The court transferred the appeal to the Divisional Court and noted that a related default judgment against the appellant had been vacated by the Supreme Court of the State of New York.

The appellants appealed the dismissal of their motion to add Enbridge Gas Distribution Inc. as a defendant after the expiry of the two-year limitation period following a water heater explosion.

The Court of Appeal upheld the dismissal, finding no evidence that the appellants exercised due diligence to identify Enbridge's potential liability within the limitation period.

However, the court allowed a consent amendment to increase the damages claimed by one of the appellants.

The appellants appealed the dismissal of their solicitor negligence action against the respondent lawyers arising from a failed life lease project.

The appellants argued the lawyers failed to advise them of legal uncertainties regarding life leases and were in a conflict of interest.

The Court of Appeal dismissed the appeal, upholding the trial judge's factual finding that any failure to advise did not cause the appellants' losses, as they would have proceeded with the project regardless.

The court also upheld the trial judge's damages calculation, which deducted the increased value of the excavated property from the project costs.

The appellant appealed a decision striking its pleading.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the pleading was beyond repair.

The appellant failed to plead that the respondents joined with the original tortfeasor to continue a false publication, and the respondents' alleged failure to stop the falsehood did not make them joint tortfeasors.

The appellants appealed a summary judgment regarding monies owing on a second mortgage, arguing the motion judge erred in her treatment of the burden of proof, the interests of justice under Rule 20.04(2.1), and the finding of no genuine issue requiring a trial.

The Court of Appeal dismissed these grounds, finding the evidence insufficient to establish an agreement terminating liability upon giving up possession of the house.

The court also dismissed an application to introduce fresh evidence under the Palmer test.

However, the court allowed the appeal in part, reducing the judgment by $6,705.58 due to a lack of evidence supporting awards for service of notices of sale and additional legal fees.

The appellants appealed an order declining to stay the respondent's action.

The appellants argued that an arbitration clause in their agreement encompassed the issues raised in the litigation.

The Court of Appeal dismissed the appeal, finding that there was no arguable arbitration provision in the contract at the relevant time, as the written contracts containing such clauses had expired and the appellants had previously communicated their desire not to arbitrate disputes.

The court also agreed with the motion judge that the claims did not fall within the alleged clause and that Ontario was the more convenient forum.

The appellants appealed an order dismissing their application for pre-certification production of automotive pricing information from a non-party, JATO Dynamics Ltd. The appellants argued the motion judge applied the wrong test under Rule 30.10 of the Rules of Civil Procedure and ignored factors from the Ballard Estate decision.

The Court of Appeal found the motion judge conducted an appropriate Rule 30.10 analysis and properly exercised his discretion.

The appeal was dismissed with costs.

The appellants appealed an order finding them in contempt of a receivership order.

They argued the motion judge erred by declining to draw an adverse inference against the receiver for failing to call two independent witnesses, and that this failure reversed the burden of proof.

The Court of Appeal dismissed the appeal, holding that drawing an adverse inference is discretionary and the motion judge made no palpable and overriding error in his findings of fact and credibility.

The self-represented appellant appealed an order finding a settlement agreement enforceable.

The appellant sought to introduce fresh evidence and argued the settlement was signed under duress.

The Court of Appeal dismissed the appeal, finding the fresh evidence test was not met and the motion judge did not err in concluding the settlement, signed while the appellant was represented by counsel, was enforceable.

Costs of $3,000 were awarded to the respondents.

The appellant bank appealed a summary judgment requiring it to honour three certified cheques.

The cheques were purchased using funds derived from a fraudulent mortgage scheme.

The motion judge had found no evidence that the respondent payee participated in the fraud and held that the bank was obliged to pay.

The Court of Appeal allowed the appeal, finding that the motion judge misapplied the burden of proof under the Bills of Exchange Act.

Because the bills were affected by fraud, the burden shifted to the respondent to prove he was a holder in due course.

Given the suspicious circumstances and credibility issues, there were genuine issues for trial.

The appellant sued his former solicitor for negligence regarding the sale of a taxi business, claiming the solicitor failed to advise him of a discrepancy in interest payments under the sale agreement.

The trial judge found the solicitor negligent but dismissed the action because the appellant failed to prove damages.

On appeal, the Court of Appeal upheld the trial judge's decision, noting that without the solicitor's negligence, the sale would not have occurred, and the appellant provided no evidence that the business was worth more than the amount received.

The appellant, a probationary managerial employee, brought an action against her employer involving whistle-blowing allegations.

The employer brought a motion challenging the Superior Court's jurisdiction, arguing the appellant should have used the grievance procedure under the Public Service Staff Relations Act.

The motion judge dismissed the action.

On appeal, the Court of Appeal found that the employer failed to advise the appellant of the grievance procedure, and by the time jurisdiction was raised, the grievance period had expired.

The Court held that the Superior Court retains residual jurisdiction and that denying the appellant access to the court would leave her without a remedy.

The appeal was allowed and the employer's motion was dismissed.

The appellants sought leave to commence an action against a court-appointed Receiver for negligence and breach of fiduciary duty.

The motion judge dismissed the request, finding that the Receiver's conduct had already been scrutinized and approved in three previous proceedings.

The Court of Appeal upheld the decision, agreeing that issue estoppel and abuse of process barred the appellants from re-litigating the same facts and arguments.

The appeal was dismissed with costs fixed at $15,000.

The appellant appealed an assessment of a party-and-party bill of costs for a motion for leave to appeal and a one-day appeal.

The Assessment Officer had assessed the successful respondent's counsel fee at $35,000.

The Court of Appeal found the assessed counsel fee to be unreasonably high, noting that the appeal involved a single question of law on uncontested facts that had already been argued in the Divisional Court.

The appeal was allowed and the counsel fee was reduced to $17,500.