Theresa Hartley

The appellant was successful on an appeal to set aside a noting in default in a slip and fall action.

The court assessed costs for the appeal and the motion below.

The respondent argued against costs, citing partial success, unreasonableness of the amount, and his impecuniosity as a recipient of social assistance.

The court rejected these arguments, finding the appellant was the successful party and the claimed costs were reasonable.

The court declined to consider impecuniosity due to insufficient evidence of the respondent's financial circumstances.

The appellant was awarded $5,764.38 in partial indemnity costs for the appeal, but no costs for the motion below.

The appellant landlord appealed a Small Claims Court decision dismissing his motion to set aside a noting in default in a slip and fall action brought by the respondent tenant.

The Deputy Judge had refused to set aside the noting in default, citing prejudice to the respondent who had already collected the default judgment funds by withholding rent.

The Divisional Court allowed the appeal, finding the Deputy Judge erred in law by failing to apply the three-part test under Rule 11.06 of the Small Claims Court Rules, improperly ignoring a prior order that had set aside an earlier default judgment due to improper service, and considering irrelevant factors such as the respondent's premature garnishment and potential claims against third parties.

The noting in default was set aside and the appellant was granted leave to file a statement of defence.

The Corporation of the City of Ottawa moved to set aside a Registrar's order dismissing its action for delay and to reinstate the action.

The motion was opposed by some third parties.

The court applied the test for setting aside a dismissal order for delay, finding that the City provided a satisfactory explanation for the delay, consistently intended to prosecute the action, and acted promptly to address the dismissal.

The court also determined that the opposing parties would not suffer significant prejudice from the reinstatement.

The motion was granted, reinstating the main action and automatically reviving derivative third-party claims.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The appellants appealed a summary judgment dismissing their action for negligence, breach of contract, misrepresentation, and breach of fiduciary duty, which was found to be statute-barred.

They also sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed both the fresh evidence motion, finding it did not meet the Palmer test, and the appeal, upholding the motion judge's finding that the limitation period had expired by December 2018.

The court affirmed that the appellants had sufficient knowledge of their losses and the responsible parties by spring 2016, and their subjective belief that a proceeding was not "appropriate" did not delay discoverability.

The plaintiffs brought a products liability action against the manufacturer of an 'Instant Pot' pressure cooker, including a Chinese corporation, GD Midea.

The plaintiffs failed to formally serve GD Midea in China pursuant to the Hague Convention, although GD Midea's insurer had actual notice of the claim and had mistakenly served a statement of defence.

The plaintiffs sought an order validating service or extending the time for service.

The court held that Rule 17.05(3) is a complete code for service in Hague Convention signatory states, and service could not be deemed or validated simply because the defendant had actual notice.

However, given the lack of prejudice and the defendant's actual knowledge of the claim, the court granted a 24-month extension of time to effect formal service through the Central Authority in China.

Following the dismissal of the plaintiffs' motion to reinstate their action and the granting of the defendants' motions for summary judgment and a vexatious litigant declaration, the court determined the costs payable to the defendants.

The plaintiffs failed to provide responding costs submissions and had a history of ignoring adverse costs awards.

The court awarded the defendants their requested costs on a partial indemnity basis, totaling $85,832.43.

The plaintiffs brought a motion under Rule 59.06(2) to set aside previous dismissal orders on the basis of fraud.

The defendant municipality brought a motion for summary judgment, and the defendants collectively applied to have the plaintiffs declared vexatious litigants under s. 140 of the Courts of Justice Act.

The court dismissed the plaintiffs' motion, finding no evidence of fraud.

The court granted the municipality's summary judgment motion, finding the claims barred by issue estoppel.

Finally, the court declared the plaintiffs vexatious litigants, noting their 15-year history of abusive litigation, frivolous appeals, and failure to pay over $218,000 in costs awards.

The self-represented moving parties sought leave to appeal a decision of the motions judge.

The Divisional Court reviewed the materials and found the motion to be entirely without merit.

The motion for leave to appeal was dismissed, with costs awarded to the responding parties.

The parties attended a case conference to schedule several proceedings, including the plaintiffs' Rule 59.06 motions to set aside previous orders, the defendants' summary judgment motion, and an application to declare the plaintiffs vexatious litigants.

The self-represented plaintiff argued that a proposed constitutional challenge regarding the conduct of opposing counsel and the judiciary should be heard first.

The court rejected this argument, noting the constitutional challenge had not yet been commenced and the other proceedings had been outstanding for years.

The court scheduled the outstanding motions for a combined hearing.

Four consolidated appeals from orders of a motion judge who dismissed actions brought by appellants against resort management companies based on a foreign limitation period.

The appellants purchased vacation packages to a Dominican resort and alleged that two of their group were injured when a balcony railing gave way on January 1, 2011.

The motion judge dismissed the actions as statute-barred under Dominican law, which imposed a six-month limitation period for tort claims.

The Court of Appeal found that the motion judge erred by failing to conduct a proper jurisdictional analysis and by making palpable and overriding errors of fact regarding whether the appellants had a contractual claim against the respondents.

The court found that Ontario courts had jurisdiction and that the motion judge's reasons were inadequate for appellate review.

The defendants brought a motion to dismiss the action for delay, citing a 15-year period since the action was commenced.

The plaintiffs brought a cross-motion to place the action on the trial list.

The court found the delay to be inordinate and inexcusable, rejecting the plaintiffs' argument that the delay was due to settlement discussions.

However, the court dismissed the motion because the plaintiffs successfully rebutted the presumption of prejudice by showing that all documentary evidence was preserved and witnesses were available and had been previously examined.

The defendants failed to show actual prejudice.

The action was ordered to be placed on the trial list.

The appellant appealed from an order dismissing his motion to set aside a previous order that dismissed his action.

The action had been dismissed after the appellant failed to comply with two separate court orders requiring him to answer undertakings and pay costs.

The motion judge found no adequate explanation for the delay or non-compliance, and noted prejudice to the respondents.

The Court of Appeal found no error in the motion judge's conclusions, noting the appellant's counsel admitted to non-compliance because he did not anticipate strict enforcement.

The appeal was dismissed with costs.

The appellant appealed the dismissal of her claim for unpaid commissions.

The trial judge had dismissed the claim, finding the contract was with the appellant's numbered company and the limitation period had expired.

The Divisional Court found the trial judge erred in making these findings without hearing evidence.

However, the appeal was dismissed because the appellant had previously initiated the same claim through her company more than two years before issuing the current claim, meaning the action was clearly statute-barred.

Three sets of third parties brought motions for security for costs against the third-party plaintiff, a non-resident corporation with no assets in Ontario.

The third-party plaintiff opposed the motions, arguing financial hardship and relying on the income stream of its parent company and the personal undertaking of its principal.

The court found the financial disclosure provided by the third-party plaintiff to be deficient and inconsistent, failing to meet the high evidentiary burden required to establish impecuniosity or hardship.

The court granted the motions and ordered the third-party plaintiff to post security for costs in tranches.

The moving party sought leave to appeal an order extending the time for the respondents to serve their statement of claim.

The statement of claim was issued just before the limitation period expired but was not served until more than four years later, and the respondents failed to provide the 120-day statutory notice under s. 258.3 of the Insurance Act.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's finding of no irremediable prejudice, and noting that the potential disregard of the statutory notice requirement is an issue of public importance.

The appellant appealed a trial judgment finding him liable for damages equivalent to a judgment the respondent insurer had obtained against his wife.

The trial judge found that the appellant and his wife had fraudulently conveyed their jointly held matrimonial home to the appellant alone to defeat the respondent's claim.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding of fraudulent intent based on the 'badges of fraud' and the shifting burden of proof.

The Court also affirmed that under the Fraudulent Conveyances Act and the Assignments and Preferences Act, the appellant held the proceeds of the subsequent sale of the property in trust for the respondent creditor.

The respondent dentist sued his former lawyer for deceit and breach of a barter arrangement after the lawyer falsely claimed for years that the dentist's actions were proceeding to trial.

The trial judge awarded $20,000 for deceit due to office disruption and $15,467.65 for unpaid dental services under the barter arrangement.

On appeal, the Court of Appeal set aside the deceit damages, finding no evidence of actual financial loss, but upheld the damages for the barter arrangement.

Trial costs on a substantial indemnity basis were reduced from $55,000 to $40,000.

Following an appeal that set aside an order extending limitation periods but adjourned the issues to trial, all parties sought costs.

The Court of Appeal determined that the respondents were substantially successful because they defeated the appellants' motion for summary judgment and maintained their position that the limitation issues should be decided at trial.

The respondents were awarded costs of $15,000 on a partial indemnity basis.

The deceased was struck and killed by two motorists while walking on a highway after becoming intoxicated at a college event.

The deceased's family commenced an action under the Family Law Act more than three years after the accident.

The motion judge extended the two-year limitation period under s. 2(8) of the Family Law Act and applied the discoverability rule.

The Court of Appeal allowed the defendants' appeal, holding that the plaintiffs' unawareness of the limitation period did not postpone it, and that whether the requirements of s. 2(8) and the discoverability rule were met should be determined at trial rather than on a motion.