A. Duncan Grace

The appellant appealed a motion judge's costs order, arguing that the respondent Lattice Engines Inc. should not have been awarded costs as its interests were identical to the respondent Scott's, and that the quantum of costs awarded to Scott was unreasonable.

The Divisional Court dismissed the appeal, finding that the respondents had distinct interests warranting separate representation and that the quantum of costs awarded to Scott was reasonable and not an error in principle.

The respondent insured received long-term disability benefits from the applicant insurer while appealing a denial of WSIB benefits.

The policy allowed the insurer to deduct 100% of WSIB benefits from the disability payments and required the insured to reimburse any overpayment.

When the WSIB appeal succeeded, the insured's counsel withheld a portion of the retroactive WSIB payment for legal fees.

The insurer brought an application to recover the gross WSIB amount.

The court granted the application, finding the policy language unambiguous and rejecting arguments based on unjust enrichment and the 'made whole' doctrine.

The applicant sought a declaration from the Superior Court of Justice that certain shares were held in a family trust, after the Canada Revenue Agency assessed him on the basis that the trust did not exist.

The Attorney General of Canada argued that the Tax Court of Canada had exclusive jurisdiction over the matter.

The court declined jurisdiction, finding that the proceeding was essentially an appeal of a tax ruling and that the Tax Court of Canada is the appropriate forum to determine the existence of a trust for income tax purposes.

In a medical negligence action, the court addressed how the trial should proceed where liability was to be determined by a jury but a limitations defence invoking the doctrine of special circumstances was to be decided by the judge alone.

The defendants argued that the jury must hear all evidence or that the jury notice should be struck, asserting that the evidence relating to liability and the limitation issue was intertwined.

The plaintiffs proposed limiting the jury’s exposure to evidence related to liability and having the limitation issue addressed separately.

The court held that under s. 108(3) of the Courts of Justice Act it could direct that certain issues of fact be tried without a jury.

The trial was ordered to proceed in two phases: a jury phase determining liability followed by a judge-alone phase addressing the limitation issue and related evidence.

The plaintiffs advanced funds to a corporation that later went into receivership.

The plaintiffs sought repayment from the individual defendants based on a poorly drafted document entitled 'Agreement to Purchase'.

The court applied the factual matrix approach to contractual interpretation and concluded that the document was intended to be a personal guarantee by the individual defendants for the corporation's debt.

Judgment was granted in favour of the plaintiffs for the outstanding principal and interest.

During the early stage of a medical negligence jury trial, the defendants brought an oral motion to strike the jury notice and discharge the jury.

The motion arose after the plaintiffs proposed that evidence relating to liability be heard by the jury, while evidence relating to a limitation defence and the doctrine of special circumstances be heard only by the judge.

The court considered whether such compartmentalization of evidence would make the trial unworkable or compromise fairness.

Emphasizing the importance of the substantive right to a jury trial and the substantial onus required to strike a jury notice, the court declined to discharge the jury at that stage.

The judge adopted a “wait and see” approach, permitting the jury to be excluded for witnesses whose evidence related solely to the limitations issue while reserving the decision regarding witnesses whose evidence might overlap both issues.

The defendant physician brought a motion seeking to disqualify the plaintiffs' counsel of record and for particulars regarding the plaintiffs' response to his limitations defence.

The defendant argued that the plaintiffs' counsel would likely need to testify regarding their due diligence to establish 'special circumstances' to extend the limitation period.

The court dismissed the motion for disqualification, noting the plaintiffs undertook not to call any current or former member of their counsel's firm as a witness.

The court also dismissed the request for further particulars, finding the draft amended statement of claim and the extensive summary judgment record provided sufficient detail.

The plaintiff and defendants brought competing motions for summary judgment in a dispute over the ownership of a share in a land-holding company and the redemption of a mortgage.

The plaintiff claimed it was the beneficial owner of the share and had validly tendered funds to redeem the mortgage.

The defendants argued the share was held to secure a 50% interest in future development, not just as security for the loan.

The court found that the conflicting evidence regarding the terms on which the share was held and the adequacy of the tender could not be resolved on a summary basis.

Both motions were dismissed, and the matter was directed to trial with specific issues defined.

During a criminal trial the accused brought a Charter application alleging that police violated s. 8 of the Canadian Charter of Rights and Freedoms through an unreasonable search of his apartment executed pursuant to a telewarrant.

The accused argued that the information to obtain the warrant relied improperly on a confidential informant and that the search of a safe within the residence required separate judicial authorization.

The court held that the information to obtain the telewarrant contained sufficient grounds, supported by independent police investigation and corroborating information from a building superintendent.

The court further held that a safe located during execution of a valid search warrant could be searched without obtaining a second warrant.

The application to exclude the firearm under s. 24(2) was dismissed and the evidence was ruled admissible.

The plaintiff, a general manager of a travel centre, was terminated for cause after she diverted funds raised for a children's charity to pay a supplier for unsold chicken wings from a failed promotional event.

She also attempted to conceal the failure of the event and the surplus inventory from her supervisor.

The plaintiff brought an action for wrongful dismissal.

The Superior Court of Justice dismissed the action, finding that the plaintiff's conduct was dishonest, undermined the employment relationship, and justified termination for cause.

A developer sued a municipality alleging breach of a supplementary subdivision agreement governing allocation of sewage capacity for a commercial and residential development.

The agreement provided that additional sewer capacity in the municipal system was reserved for the developer’s subdivision and that the municipality would not allocate capacity to lands outside the subdivision until the development was fully built out.

The municipality nevertheless allocated capacity to an adjacent development and expropriated a one‑foot reserve to allow connection.

The court interpreted the contractual language in light of the factual matrix and held the agreement granted the developer priority to available capacity.

The municipality breached the agreement by allocating capacity to the neighbouring development before completion of the subdivision.

The plaintiff proved loss‑of‑chance damages for lost leasing opportunities and was awarded compensatory damages, but punitive damages were denied.

Following a family law proceeding in which the parties resolved nearly all substantive issues through Minutes of Settlement, the court addressed the issue of costs.

The judge held that costs for earlier motions could not be determined by the trial judge because Rule 24(10) of the Family Law Rules requires the judge who heard the step to determine costs promptly after that step.

Given that the substantive issues were resolved through settlement and the record did not permit a clear determination of success by either party, the court declined to find either party more successful.

The court concluded the settlement represented a compromise and that determining a winner or loser would amount to speculation.

Each party was therefore ordered to bear their own costs.

The accused was charged with possession of cocaine for the purpose of trafficking after police recovered crack cocaine from a safe and a smaller quantity from a witness during a domestic incident investigation.

The Crown relied heavily on the evidence of a key witness who repeatedly recanted and altered her account of events, including statements to police, testimony at the preliminary inquiry, and testimony at trial.

The court found the witness unreliable due to significant inconsistencies and admissions of lying.

Although circumstantial evidence linked the accused to a safe containing cocaine, other individuals had access to the apartment and may have handled the safe.

The court held that the Crown failed to prove beyond a reasonable doubt that the accused had knowledge or control of the cocaine.

The appellant appealed a decision of the Health Professions Appeal and Review Board, which confirmed the Registration Committee of the College of Nurses of Ontario's refusal to annul her third unsuccessful attempt at the Canadian Practical Nurse Registration Examination.

The appellant argued she experienced health concerns during the exam.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable as the appellant failed to provide sufficient evidence of the nature, extent, and consequences of her illness to justify annulling the exam attempt.

The tenant appealed a decision of the Landlord and Tenant Board allowing the corporate landlord to terminate the tenancy for the occupation of the sole shareholder's mother.

The tenant argued the reasons were inadequate and that a corporate landlord could not rely on s. 48(1) of the Residential Tenancies Act for this purpose.

The Divisional Court dismissed the appeal, finding the reasons adequate and confirming that the definition of 'landlord' includes the sole shareholder of a corporate landlord, permitting eviction for the shareholder's parent.

The moving party landlord sought an extension of time to appeal a decision of the Landlord and Tenant Board that ordered him to pay the responding party tenant $7,720.

The court applied the four-part test for extending the time to appeal.

The court found that the moving party failed to provide documentary proof of an intention to appeal within the time limit, offered a weak explanation for the delay, and raised an appeal of questionable merit given evidence that he likely had notice of the hearing.

The motion for an extension of time was dismissed with no costs.

The appellant appealed a Small Claims Court judgment ordering him and his corporation to pay $9,300 for a Persian carpet.

The appellant argued the trial judge erred by granting judgment against him personally without piercing the corporate veil, as the cheque was drawn on the corporation's account.

The Divisional Court dismissed the appeal, finding that both the individual and corporate defendants were involved in the transaction, having both issued cheques for the purchase price.

As the defendants denied any transaction occurred, the trial judge correctly found them jointly and severally liable as co-buyers.

The plaintiffs contracted HIV from the defendant after he had unprotected sex with them without disclosing his status.

The plaintiffs sued the Windsor Health Unit and the Windsor Police for negligence, alleging they knew of the risk the defendant posed but failed to take steps to prevent it.

The health unit and police moved for summary judgment to dismiss the action, arguing they owed no private law duty of care to the plaintiffs.

The court dismissed the motions, finding that the issue of whether a duty of care existed was complex and required a full trial to determine proximity and policy considerations.

In a motor vehicle personal injury action, the defendants brought a motion requiring the plaintiff to attend a further independent medical examination by a psychiatrist after several prior defence examinations had already been conducted.

The defence argued the examination was necessary following a neuropsychologist’s suggestion that the plaintiff’s symptoms might reflect a conversion disorder.

The court held that the defendants already possessed extensive medical evidence from numerous specialists and that the proposed examination appeared aimed at developing a new diagnostic theory rather than responding to an issue requiring further investigation.

The evidentiary basis for the additional psychiatric examination was insufficient, and the request risked becoming a fishing expedition.

Given the number of prior examinations and the intrusive nature of another assessment, the motion was dismissed.

The applicant brought a motion seeking an order compelling pension administrators to comply with a prior consent order requiring transfer of one-half of the respondent’s pension as lump sum spousal support.

The administrators argued the order exceeded the court’s jurisdiction under the Pension Benefits Act as it existed prior to amendments that came into force on January 1, 2012.

The court reviewed the interaction between the Family Law Act support provisions and statutory restrictions on pension assignments, noting concerns that the consent order may have improperly attempted to divide pension property under the guise of support.

Given uncertainty regarding the remaining balance of lump sum support and the value of other transferred assets, the court declined to grant relief against the pension administrators on the existing record.

The applicant was permitted to supplement the record to establish any outstanding spousal support before further relief would be considered.