Selwyn John Hicks

The appellants successfully appealed orders from the Superior Court of Justice that had reinstated a default judgment and permitted the sale of certain property.

The appeal was allowed because the respondent failed to make full and fair disclosure of material facts concerning the appellants' alleged default and participation in the action when attending before the court without notice to the appellants.

The appellants were self-represented throughout most of the proceedings and only retained counsel a few months before the appeal was argued.

The court awarded costs to the appellants on a partial indemnity basis, finding their claim for substantial or full indemnity costs to have no basis and their partial indemnity claim to be excessive and disproportionate.

The appellants appealed orders of the Superior Court of Justice dismissing their motion to set aside a reinstated default judgment and authorizing the sale of their property to satisfy the judgment.

The original action was commenced in 2001 and resulted in a default judgment of approximately $86,000.

The judgment was subsequently set aside, then reinstated by Brown J. in 2008 on an ex parte basis.

The appellants moved to set aside the reinstatement, but the motion judge dismissed their motion.

The Court of Appeal allowed the appeal, finding that the respondent failed to make full and fair disclosure of material facts when appearing before Brown J. without notice to the appellants, which was a sufficient basis to set aside the judgment.

The respondent, a convenience store clerk, sold cigarettes to a 17-year-old test shopper after misreading the birth year on the shopper's identification due to 'human error'.

She was convicted of selling tobacco to a minor under the Smoke-Free Ontario Act, but the summary conviction appeal court overturned the conviction, finding her honest mistake satisfied the statutory defence.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the statutory due diligence defence requires a reasonable belief formed after exercising reasonable care in reviewing the identification, which a mere unexplained human error does not satisfy.

The appellant municipality appealed a costs order made against it after it sought to enforce a support assignment through the Family Responsibility Office.

The support obligation had previously ceased, but the assignor had falsely certified it was active.

The Divisional Court found that while the lower court had jurisdiction to award costs against the appellant because it became a party by filing a Notice of Financial Interest, the costs order was unjustified on the merits.

The appellant had no reason to doubt the assignment's validity and its failure to attend the motion was not unreasonable.

The appeal was allowed and the costs order against the appellant was set aside.