Top 5 Civil Appeals From The Court Of Appeal (November 2012)

Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700 (Sharpe, Gillese and Watt JJ.A.), October 17, 2012 McCarthy Tétrault LLP v. Guberman, 2012 ONCA 679 (Sharpe, Gillese and Watt JJ.A.), October 10, 2012 SA Capital Growth Corp. v. Mander Estate, 2012 ONCA 681 (Sharpe, Gillese and Watt JJ.A.), October 10, 2012 Sazant v. College of Physicians and Surgeons of Ontario (Publication Ban), 2012 ONCA 727 (Simmons, Armstrong and Pepall JJ.A.), October 30, 2012 Duchesne v. St-Denis, 2012 ONCA 699 (Weiler and Sharpe JJ.A., and Mackinnon J. (ad hoc)), October 17, 2012 1. Georgian Bluffs (Township) v. Moyer , 2012 ONCA 700 (Sharpe, Gillese and Watt JJ.A.), October 17, 2012

  1. Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700 (Sharpe, Gillese and Watt J.J.A.), October 17, 2012

    When a municipality, cleaning up garbage left on a road allowance, commits a technical trespass in also picking up garbage on the property owner's land, what are the damages and who pays legal costs of the action?

    This case concerns a dispute between the Township of Georgian Bluffs and the appellant, who owns a one hundred acre property in the Township.

    The appellant used his property as something of a junkyard, storing discarded vehicles, construction materials and equipment on his land, some of which was dispersed over a municipal road allowance adjacent to the property. Representatives of the Township entered onto the road allowance and part of the appellant's property to remove some of these objects. The Township then added the cost of removal and cleanup to the appellant's property tax bill and commenced an action claiming an order requiring him to remove objects and debris from his property. The appellant counterclaimed for damages for trespass and conversion, punitive damages and an order removing the costs from his tax bill.

    The trial judge ruled in favour of the appellant in all matters but the claim in conversion and the claim for punitive damages, and ordered what he called an "equitable resolution" whereby the appellant was entitled to retrieve three vehicles without charge and was not required to compensate the Township for its clean-up costs. The trial judge further ordered that each party bear its own costs of the action.

    The appellant appealed to the Court of Appeal, seeking damages for conversion and trespass, punitive damages and leave to appeal costs award, seeking his costs of the action.

    The court held that the trial judge's remedy was an appropriate one. While the Township's trespass was "not minimal", it was "not grossly intrusive" and the damage it caused to the appellant's property "negligible". Meanwhile, though the objects removed from the appellant's property were worthless, they did belong to the appellant and he was entitled to an award of nominal damages for the Township's act of conversion. By allowing the appellant to retrieve vehicles without towing or storage charges, the judgment effectively set off the clean-up, towing and storage charges against the damages for trespass. The award in conversion was subsumed in the remedy.

    The court further held that there was no basis for an award of punitive damages. The Township may have been incompetent, but its conduct was not "malicious, high-handed, arbitrary, oppressive, deliberate or callous."

    On the issue of costs, the court found that despite the futility of the action, it was brought by the Township and successfully defended by the appellant on the substantive issues. On that basis, the appellant was entitled to his costs. The court cited its own decision in Northwood Mortgage Ltd. v. Gensol Solutions Inc. (2005), 3 B.L.R. (4th) 322 (Ont. C.A.) in which it stated that "an order depriving a successful party of costs is exceptional".

    The court granted leave to appeal the costs and awarded the appellant his costs of the trial, but otherwise dismissed his appeal.

  2. McCarthy Tétrault LLP v. Guberman, 2012 ONCA 679 (Sharpe, Gillese and Watt JJ.A.), October 10, 2012 When a client promises to pay and doesn't, and when the Solicitors Act does not apply, can the client nevertheless demand an assessment of the lawyer's bill?

    McCarthy Tétrault, which acted for the appellant in his divorce proceedings, sued the appellant for unpaid legal bills. The appellant defended and counterclaimed for an order that the bills be referred for assessment. The appellant argued that failures on the part of his lawyer resulted in financial losses.

    Both parties moved for summary judgment, which the motion judge granted in favour of the respondent. The appellant appealed, asking that the judgment be set aside...

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