Civil Litigation - Defendant - ONSCDC

The self-represented appellant brought a motion seeking leave to introduce fresh evidence on his appeal.

He argued the new evidence would show the trial judge erred in finding that photographs were delivered unconditionally as a gift.

The Divisional Court dismissed the motion, finding that the proposed evidence was not in affidavit form, could likely have been obtained before trial with reasonable diligence, and would not be conclusive of the issue.

The appellant, a photographer, appealed a trial judgment dismissing his copyright infringement action against a golf club and its CEO.

The appellant had provided the club with an album of photographs and later took additional photos for a wedding and the club's website.

The trial judge found the appellant had gifted the initial album unconditionally, creating an oral, non-exclusive license to use the photos.

The Divisional Court upheld this finding, confirming that non-exclusive licenses do not require writing under s. 13(4) of the Copyright Act.

However, the Court reversed the trial judge's finding that the club owned the copyright in the 'July to October photographs', as a handwritten note was insufficient to grant an exclusive license.

The appeal was otherwise dismissed.

The moving party, an agricultural marketing board, sought leave to appeal an interlocutory decision that refused to grant an interim injunction against the responding chicken farmers.

The motions judge had characterized the dispute as private litigation, conflicting with another judge's decision in the same action that granted intervenor status based on substantial public interest.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision, as the claim involved a legislated federal-provincial marketing system and public law principles under the Farm Products Marketing Act.

The appellant appealed a Superior Court judgment that dismissed his $22,000 claim and awarded the respondents $19,260 on their counterclaim.

At the commencement of the appeal, the Divisional Court raised the issue of its jurisdiction under section 19(1)(a) of the Courts of Justice Act.

Following a recent ruling, the court held that it lacks jurisdiction when the combined total of the dismissed claim and the awarded counterclaim exceeds the $25,000 monetary limit.

On consent of the parties, the appeal was adjourned to the Court of Appeal.

The applicant sought leave to appeal an interlocutory decision requiring him to answer questions and produce documents related to a tracing remedy ordered in a prior judgment.

The applicant argued he should not have to disclose assets without the plaintiff first establishing an evidentiary link.

The court dismissed the motion, finding the trial judge's order clearly required the production and the issue was res judicata as the underlying judgment had been upheld by the Court of Appeal.

The appellant occupier appealed a Small Claims Court decision awarding damages to a pizza delivery driver who slipped and fell on an unplowed path on the premises.

The trial judge found the occupier 50% liable due to inadequate lighting and signage directing visitors to the safe, plowed staircase.

On appeal, the occupier argued that inadequate lighting was not specifically pleaded and that the trial judge erred in her findings.

The Divisional Court dismissed the appeal, holding that the pleadings regarding failure to maintain safe pathways were broad enough to include lighting, the issue was raised at trial without objection, and there was ample evidence to support the trial judge's findings on breach of duty and causation.

The appellant appealed the dismissal of his wrongful dismissal claim.

The trial judge had found that a mutual release signed by the appellant was a complete defence to the action, as there was no evidence of coercion or unconscionability.

The appellant also appealed the trial judge's decision to allow an amendment to the statement of defence at the opening of the trial.

The Divisional Court found no merit in either ground of appeal and dismissed the appeal.

The respondent/defendant brought a cross-appeal regarding costs following a wrongful dismissal action under the Simplified Procedure Rule where the plaintiff sought $25,000.

The defendant had made a Rule 49 offer of one month's salary which the plaintiff did not accept.

The Divisional Court allowed the cross-appeal, finding no reason to deny the successful party its costs.

The court fixed costs for the trial, appeal, and cross-appeal at $10,000 all-inclusive, payable by the appellant/plaintiff to the respondent/defendant.

The moving party (appellant) sought leave to introduce fresh evidence on an appeal regarding a dispute over photographs.

The appellant argued the new evidence would contradict the trial judge's finding on the date the photographs were delivered, thereby undermining the trial judge's credibility assessment.

The Divisional Court dismissed the motion, finding that the proposed evidence was not in affidavit form, could likely have been obtained before trial with reasonable diligence, and would not be conclusive of the issue.

The applicants brought applications for judicial review.

During the hearing, counsel for a third party requested an adjournment to review the filings and potentially seek intervenor status, as the third party had not been served.

The court granted the adjournment to allow the third party to decide whether to intervene.

The court also issued an interim order delaying the effective date of the third party's generic drug listings pending the resumption of the hearing.

The appellant appealed a Small Claims Court judgment awarding the respondent $10,000 for damages to chattels, punitive damages, and lost wages arising from a failed tenancy and wrongful detention of goods.

The Divisional Court dismissed most grounds of appeal, finding the trial judge made no palpable and overriding errors in assessing credibility, evidence, or mitigation.

However, the court allowed the appeal regarding punitive damages, finding the trial judge failed to apply the proper test requiring harsh, vindictive, reprehensible, and malicious conduct.

The total award was reduced to $9,600.

The applicant sought an adjournment of its judicial review application because the respondent government failed to communicate its position until delivering its factum just days before the hearing.

The government also filed its own judicial review application at the last minute without a proper record.

The Divisional Court granted the adjournment and awarded costs to the applicant on a complete indemnity basis, finding the delay was entirely the fault of the government's cavalier approach.

The plaintiff estate appealed a Master's order dismissing its action for delay.

The action, concerning a $185,000 debt, had seen little progress for over four years.

During this inexcusable delay, three key witnesses for the defendants died, including the father of the defendant who allegedly acted as the deceased's agent.

The Divisional Court upheld the Master's finding that the delay was inordinate, inexcusable, and caused substantial prejudice to the defendants' ability to defend the claim.

The appeal was dismissed.

The defendants appealed a decision of Master Kelly.

The Divisional Court dismissed the appeal, finding that the Master correctly applied the law and exercised his discretion.

The court awarded substantial indemnity costs to the responding parties, noting that the appellants filed voluminous, prolix, and largely irrelevant materials, which amounted to an unnecessary onslaught that the responding parties had to defend against.

The plaintiff appealed a Master's order dismissing her claims for special damages and loss of income due to her failure to fulfill undertakings from an examination for discovery.

By the time of the appeal, the outstanding undertakings had been fulfilled.

The Divisional Court allowed the appeal and set aside the Master's order, finding that the plaintiff's conduct was not contumelious and did not cause serious prejudice to the defendant, and that denying her a day in court would allow form to triumph over substance.

The applicant municipal councillors sought leave to appeal the dismissal of their motion for summary judgment in an action for wrongful dismissal and defamation brought by the former city manager.

The applicants argued the motions judge erred in her application of the defence of qualified privilege and the assessment of malice.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's decision, as malice is a question of fact requiring a trial to assess credibility.

The plaintiff's application for leave to appeal an interlocutory order regarding the attendance of co-defendants at examinations for discovery was dismissed.

The parties made written submissions on costs.

The defendants sought $4,544.90.

The court considered the factors under section 131 of the Courts of Justice Act and Rule 57.01, noting some procedural delays by the plaintiff but also adjusting for duplication of work.

Costs were fixed at $3,500 inclusive of disbursements and GST.

The appellants appealed a decision regarding legal fees charged by their former lawyer for a real estate transaction.

The appellant client testified that a $1,500 fee was agreed upon, which the lawyer did not contradict.

The Divisional Court allowed the appeal in part, reducing the fee award to $1,500.

The court dismissed the appellant's allegations that the lawyer conspired with the purchaser's counsel to defraud her, finding no evidence to support the claims and noting the appellant had signed a mutual release.

Following the dismissal of the self-represented plaintiff's motion for leave to appeal, the court determined the costs to be awarded to the successful defendants.

The court reviewed the principles for fixing costs under the new costs grid and the Courts of Justice Act.

Finding no compelling reasons for substantial indemnity, the court awarded costs on a partial indemnity basis to the various defendants, totalling $16,158.08.

The appellant appealed a Master's decision refusing to stay an order for partial summary judgment requiring her to pay $126,500 owing on two promissory notes.

The Master had exercised his discretion under Rule 20.08, considering the equities and the weakness of the appellant's draft counterclaim.

The Divisional Court dismissed the appeal, finding that the Master applied the correct legal principles and was not clearly wrong in his exercise of discretion.