Civil Litigation - Plaintiff - ONCA

The appellants appealed the dismissal of their motion to set aside a 2014 consent dismissal and underlying settlement of a personal injury action.

The settlement was negotiated by their former lawyer, who misappropriated the funds and failed to obtain court approval under Rule 7.08 for the injured plaintiff, who was a party under disability.

The Court of Appeal upheld the motion judge's decision, finding she correctly applied the Book factors.

The insurer had acted in good faith without knowledge of the disability, and the settlement itself was not unreasonable.

The court held that the lawyer's fraud did not impugn the reasonableness of the settlement from the perspective of the tort claim.

The respondent brought a motion in his family law proceedings to compel his former solicitor to deliver his complete file to his new lawyer.

The former solicitor resisted, claiming a solicitor's lien for unpaid fees.

The motion judge ordered the file to be turned over temporarily for copying.

The former solicitor appealed.

During the appeal hearing, the parties agreed to a variation of the order allowing the former solicitor to retain original signed documents and provide electronic copies of electronic records.

The Court of Appeal varied the order accordingly and awarded costs to the respondent.

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 appellant appealed the denial of her request for an adjournment and the subsequent dismissal of her cross-application.

She argued that opposing counsel lacked the authority to act on the day of the hearing.

The Court of Appeal dismissed the appeal, finding that the motion judge was entitled to accept counsel's assurance of authority and properly exercised his discretion in denying the adjournment.

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 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 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 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 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 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 appellants appealed a trial decision regarding a stolen backhoe that police recovered and turned over to the respondents for storage.

The appellants argued the respondents had a duty to investigate the ownership of the backhoe.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusion that the police, not the respondents, had the responsibility to investigate ownership.

The Court also found no error in the trial judge's credibility assessments.

Following the release of its reasons on appeal, the Court of Appeal received written submissions on costs.

The successful respondent, the Municipality of Clarington, was awarded costs of the appeal fixed at $15,000 on a partial indemnity basis, inclusive of GST and disbursements.

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, 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 appealed the dismissal of their actions against a solicitor for breach of undertaking and against a corporate defendant for fraudulent conveyance.

The solicitor had released holdback funds after confirming with the architect that deficiencies were rectified, fulfilling the terms of the undertaking despite an initial breach.

The trial judge also found that the corporate defendant held the transferred property as a bare trustee, defeating the fraudulent conveyance claim.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error as the issues were primarily based on credibility assessments.

The plaintiff's action was dismissed after the trial judge refused to grant a third adjournment.

The plaintiff, who was unrepresented after his lawyer was removed from the record, failed to retain new counsel in time for the peremptory trial date and failed to pay the costs thrown away from a previous adjournment.

The Court of Appeal dismissed the appeal, holding that the trial judge's refusal was justified given the plaintiff's lack of diligence in retaining counsel and his failure to comply with the court's costs order.

The appellant appealed the dismissal of his claim for damages arising from a motor vehicle accident.

The Court of Appeal dismissed the appeal, finding there was evidence to support the trial judge's conclusion that the appellant failed to prove the respondent was at fault.

The appeal regarding damages was not considered as liability was not established.

The appellant, a bank employee in a position of trust, appealed a summary judgment dismissing her wrongful dismissal action.

The motions judge found the bank had just cause to dismiss her after she engaged in kiting or similar conduct, having been warned twice previously.

The Court of Appeal upheld the decision, finding no trial was required as the appellant had no innocent explanation and admitted to the conduct.

The appellant appealed an order dismissing an application on the basis that disputed facts required a trial.

The Court of Appeal agreed that the matter could not proceed by way of application, but held that the motion judge should have converted the proceeding into an action under the Rules of Civil Procedure rather than dismissing it without prejudice.

The appeal was allowed, the dismissal order was set aside, and directions were given for pleadings and discovery in the converted action.

No costs were awarded on the appeal.