Civil Litigation Blog

The Court of Appeal for Ontario has no jurisdiction to hear an appeal from an interlocutory order.In P.M. v. M.A., 2017 ONCA 6, the Court of Appeal rejected counsel’s argument that the Court had inherent jurisdiction or some type of residual jurisdiction to hear the appeal of an interlocutory order of the Superior Court.The concept of inherent jurisdiction has been described as follows:The inherent jurisdiction of the court is a virile and viable doctrine, and  has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particularly to ensure the observation of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them"The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 27-28. In Halsbury's Laws of England, 4th ed. (London: Lexis-Nexis UK, 1973 -) vol. 37,at para. 14The Court in P.M. v. M.A., 2017 ONCA 6 held that there must be a statutory basis for the Court to hear an appeal and counsel could not point to any.

"For other good reason"In my November 9, 2016 blog, I discussed motions for security for costs of appeal where there is good reason to believe the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the cost of the appeal: Rule 61.06(1)(a) of the Rules of Civil Procedure.There is in the appellate context, however, an additional basis for a court to issue an order for security for costs, viz: where there is "other good reason" (Rule 61.06(1)(c)).This rule does not necessarily require that the respondent to the appeal establish that the appellant has insufficient assets in Ontario to pay the costs of the appeal, or even that the appeal is frivolous and vexatious.Even when the case is not frivolous and vexatious, a low prospect of success is a factor that may lead the Court ot conclude that it is appropriate to order security for costs.  For instance, in Perron v. Perron, the Court of Appeal for Ontario made an order for security for costs despite not finding the appeal to be frivolous or vexatious.  The low prospect of success on appeal, coupled with the behavior of the appellant which included lengthening the trial process and avoiding liability for his costs at trial was sufficient to allow the Court to make an order for security for costs "for other good reason."See Perron v. Perron, 2011 ONCA 776 ONCA 776 (CanLII) at paras 21 and 23In the circumstances, the Court held, it would be very unfair to expose the respondent to the risk that the appellant will not satisfy the costs of appeal.Rule 61.06 of the Rules of Civil Procedure:          SECURITY FOR COSTS OF APPEALIn an appeal where it appears

It is well established that the general measure of damages for breach of contract is the amount of damages that will, so far as money can, place the aggrieved party in the same position as if the wrong had not been done.The focus is on the injured party’s loss and on the measure of compensation required to restore it to the position that it would have been in had the contract been performed.With respect to the appropriate date for the assessment of damages, the presumption is that damages, including those for loss of a business or opportunity, should generally be assessed as of the date of breach: Johnson v. Agnew, [1980] A.C. 367 (H.L.), at pp. 400-401.  The general presumption that damages will be assessed as of the date of breach may be subject to exceptions where fairness requires it.  However, this presumption should not be easily displaced; any deviation from it must be based on legal principle. As the British Columbia Court of Appeal recently noted in Dosanjh v. Liang, 2015 BCCA 18 (CanLII), 380 D.L.R. (4th) 137, at para. 55:[T]he presumption that contract damages are to be assessed as of the date of the breach is not so easily displaced. It is important that the law in this area be predictable, and such predictability is not served by allowing judges unbounded discretion as to the date for assessment of damages.This general presumption should only be displaced in special circumstances, such as, for example, where no market exists to replace undelivered shares at the date of breach: Kinbauri, at para. 126; or in relation to “[s]ome classes of property, including shares, whose value is subject to sudden and constant fluctuations of unpredictable amplitude, and

Courts have long frowned on the practice of raising new arguments on appeal. The concerns are two-fold: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue. See Chuang v. Toyota Canada Inc., 2016 ONCA 852; College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 6895 (CanLII); Kaiman v. Graham, 2009 ONCA 77 (CanLII), 245 O.A.C. 130, at para. 18 A party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle.. In Mujagic v. Kamps, 2015 ONCA 360 (2015 ONCA 360 (CanLII), 125 O.R. (3d) 715, at para. 12, the Court of Appeal for Ontario said that the power to re-open an appeal “will be exercised sparingly and only where it is clearly in the interests of justice”.