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22 Jan 09

Fuda v. Conn, 2009 CanLII 1140 (ON S.C.)

Default judgment defamation

www.canlii.org/...2009canlii1140.html - Preview

law Default judgment defamation damages www

the plaintiff is entitled to judgment only if the admitted facts entitle the
plaintiff to judgment in law:
“The lack of a defence to an action should not lead a plaintiff to assume that
the ultimate burden of proof is somehow lowered or that the law does not
matter.”
6 more annotations...
- As there was no defence filed and only the plaintiff’s evidence at trial, there
  is no issue of the defence of fair comment, qualified privilege or justification
- Furthermore, an accusation of criminal behaviour is actionable without proof of
  special damages
- malice is demonstrated in this case because the
  statements contained in the Circular were published with an improper motive or
  purpose, that is, to malign the plaintiff in order to take
  support away from him in the proxy battle. In that the action was
  undefended, there was no explanation given concerning the state of mind of the
  defendants although evidence of the author’s state of mind would have been
  admissible and relevant to the issue of malice
- significant awards for special damages in defamation cases are the exception
  rather than the rule
- I find that because similar statements were published in 2001 and 2002 and were
  investigated at that time, they would no longer have as great an effect on Mr.
  Fuda’s personal relationships
- This amount takes into account that the defamatory statements were published in
  a document that is available on the Internet and the possible extent, frequency
  and repetition of the publication of the defamatory statements is an aggravating
  factor

11 Dec 08

Canada v. Granitile Inc., 2008 CanLII 63568 (ON S.C.)

[299] A failure to exercise due diligence, where fraud might otherwise have been discovered, is not enough to sustain a judgment which resulted from that fraud.

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Law Fraud judgment Abuse-of-Process

The first test: The party must prove the fraud on a balance of
probabilities with clear and cogent evidence
The second test: The party must not have had knowledge of the fraud
and the evidence necessary to prove the fraud at the time of the initial
trial
2 more annotations...
- The third test: The party must show that the fraud affected the result
  in the judgment but need not show that it was a determining factor
- The fourth test: The moving party, in a motion to set aside a judgment
  on the grounds of fraud, must demonstrate that it did not act with undue
  delay

21 Aug 08

Kal-Trading Inc. v. Extrusiovinyl & Plastics Inc., 2008 CanLII 40966 (ON S.C.)

Claim - wins on summary judgment; Counterclaim - lacks supporting evidence; Solution - Defendant pays summary judgment into court in 30 days if it wishes to proceed, otherwise, Plaintiff gets judgment.

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Law Summary judgment counterclaim

18 Jul 08

Chanicka v. Creary, 2008 CanLII 35267 (ON S.C.)

to set aside the judgment ... I must be satisfied that (1) the circumstances giving rise to the default are adequately explained; (2) the motion was brought as soon as possible; and (3) the defendant has shown a defence such that the issues cannot be decided without cross-examination or it would otherwise be unjust to decide the issues on the motion.

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Law Default Judgment Service

to set aside the judgment against her. In order to exercise my discretion
to do so, I must be satisfied that (1) the circumstances giving rise to the
default are adequately explained; (2) the motion was brought as soon as
possible; and (3) the defendant has shown a defence such that the issues cannot
be decided without cross-examination or it would otherwise be unjust to decide
the issues on the motion.

16 Jul 08

Farm Credit Canada v. Nanda et al, 2006 MBQB 79 (CanLII)

Parol Evidence - Mining & Allied Supplies (Canada) Ltd. v. 2390869 Manitoba Ltd. (supra) : there is a question as to the admissibility of extrinsic evidence and the existence of the alleged corollary agreement.

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Law Summary Judgment Parol-Evidence

the plaintiff's case, when held up to scrutiny in light of all of the
evidence available for consideration on the motion, must have an air of reality
to it and not be merely the product of wishful, fanciful or imaginative thinking
on the part of the plaintiff.
disputed factual issues should not be resolved summarily. This is particularly
so where a party's state of mind, intention or knowledge is in
controversy:
2 more annotations...
- The fundamental rule is that if the language of the written contract is clear
  and unambiguous, then no extrinsic parol evidence may be admitted to alter,
  vary, or interpret in any way the words used in the writing.
- There is an issue for trial, that being the same issue considered by the
  Manitoba Court of Appeal in Mining & Allied Supplies (Canada) Ltd. v.
  2390869 Manitoba Ltd. (supra) : there is a question as to
  the admissibility of extrinsic evidence and the existence of the alleged
  corollary agreement.

04 Jul 08

R. v. Hepworth, 2008 ONCJ 300 (CanLII)

Burke as permitting “an inquiry directed toward what a judge or jury intended to say, and in fact said, but without permitting the judge or jury to reconsider and possibly change the verdict

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Law Error Judgment

“a jury can make an error in recording a verdict; so can a judge”. He
interpreted Burke as permitting “an inquiry directed toward what a judge
or jury intended to say, and in fact said, but without permitting the judge or
jury to reconsider and possibly change the verdict
the remedial jurisdiction should be exercised “when there is no perceptible
injustice to the accused and no reasonable apprehension of bias” or taint.
1 more annotations...
- before remedial action to correct the wording of a probation order can be made I
  must first determine whether there has been an error without reconsidering the
  order itself. If there has been an error and reconsideration is not
  required then I may conduct an inquiry to determine if remedial action would be
  unfair to the accused and whether any reasonable apprehension of bias or taint
  exists.