Andrew K. Lokan

The applicant commenced an application for judicial review of two decisions made by the Workplace Safety and Insurance Appeals Tribunal over twelve years prior.

The Tribunal brought motions to be added as a party and to dismiss the application for delay.

The Divisional Court granted the motion to add the Tribunal as a party pursuant to section 9(2) of the Judicial Review Procedure Act.

The court also dismissed the application for judicial review, finding the twelve-and-a-half-year delay excessive, without reasonable explanation, and prejudicial to the Tribunal.

The self-represented applicant sought an immediate hearing of his application on the merits before a single judge of the Superior Court, citing urgency and dire financial consequences.

The case management judge clarified that an application on the merits could not be heard immediately and explained the proper use of section 6(2) of the Judicial Review Procedure Act.

The court directed that if the applicant required immediate relief, he must bring a motion for interlocutory relief, and maintained the previously ordered schedule for the respondent's motion to dismiss the application as an abuse of process.

The parties were in a romantic relationship for nearly 14 years but maintained separate residences.

The trial judge found they were spouses under the Family Law Act and awarded the respondent indefinite spousal support based on the Rule of 65, along with substantial indemnity costs.

On appeal, the Court of Appeal upheld the finding that the parties were spouses, noting that maintaining separate residences does not preclude a finding of cohabitation.

However, the Court found the trial judge erred in concluding the parties began cohabiting in the first five months of their relationship, meaning the Rule of 65 was not met.

Spousal support was reduced to a 10-year duration.

The costs award was also reduced to partial indemnity, as the appellant's legal position and financial disclosure were deemed reasonable.

The applicant estate sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision denying survivor benefits following the death of a firefighter from a heart attack.

The Tribunal found that the statutory presumption for firefighters did not apply because the deceased had not attended a 'fire scene' within 24 hours of the heart attack, and that the injury did not otherwise arise out of and in the course of employment.

The Divisional Court dismissed the application, holding that the Tribunal's decision and its subsequent refusal to reconsider were reasonable and supported by the evidence and applicable policies.

Two consolidated appeals arising from a family law proceeding between parents concerning custody and access to their child.

The respondent appealed an order dismissing a recusal application against a judge, and the appellant appealed an order denying leave to amend pleadings to seek custody.

The court found the case had become a procedural morass characterized by lack of good faith efforts to resolve issues.

Both appeals were dismissed.

The court emphasized that the appellant had pursued indirect procedural tactics rather than direct routes of review, and that the custody issue had been finally determined by a subsequent order that was not appealed.

This is a costs decision on appeal from a family law matter.

The appellant (father) sought to stay family law claims pending resolution of a constitutional challenge under s. 35 of the Constitution Act, 1982.

The motion judge struck the amended answer as lacking proper pleading of the constitutional claim.

On appeal, the Court of Appeal allowed the appeal in part, granting leave to amend the answer but refusing to stay the interim support order or the family law claims.

The respondent (mother) was found to be more successful on the appeal.

The court awarded costs to the respondent in the amount of $20,000, inclusive of the costs of a stay motion and all disbursements and HST.

The respondent in matrimonial litigation moved to have the former case management judge recuse himself due to a reasonable apprehension of bias.

The new case management judge dismissed the motion, finding it premature and pointless as the former judge was not scheduled for future involvement.

The court determined the respondent had an ulterior motive to revisit prior rulings and that the motion constituted an abuse of process, contrary to the Family Law Rules' objectives of saving time and expense.

The appellant appealed a costs award of over $300,000 made by the motion judge in family law proceedings.

The motion judge had awarded costs to the respondent following a successful motion to strike the appellant's answer on the basis that a constitutional issue was not properly pleaded.

The Court of Appeal allowed the appeal on the merits, which provided the appellant with the opportunity to amend his answer.

The respondent remained entitled to costs of the original motion, but the costs award was reduced from over $300,000 to $200,000.

The court found that the motion judge erred in principle by adopting a "close to full recovery" approach, giving undue weight to settlement offers in circumstances where settlement was not practically possible, inappropriately increasing costs based on the appellant's ability to pay and the respondent's financial need, and failing to apply the proportionality principle required by the Family Law Rules.

Two members of the Haudenosaunee (Six Nations of the Grand River) brought a family law dispute regarding custody, child support, and spousal support.

The respondent raised a constitutional claim under s. 35 of the Constitution Act, 1982, asserting an Aboriginal right to have the dispute resolved through Haudenosaunee governance processes and laws rather than Ontario family law.

The motion judge struck the constitutional claim without leave to amend and dismissed it as lacking standing and justiciability.

The appellant appealed.

The Court of Appeal allowed the appeal in part, setting aside the dismissal of the constitutional claim and permitting the appellant to seek leave to amend his pleading.

The court held that while the constitutional claim faced serious obstacles, it was premature to dismiss it summarily at an early stage of proceedings.

The court also refused to stay the family law proceedings and permitted interim support orders to continue pending resolution of the constitutional claim.

The appellant, a medical doctor who prepares impairment assessments for insurers in motor vehicle accident claims, sued the respondent, a lawyer and OTLA president-elect, for libel following an email posted to the OTLA Listserv.

The email alleged that the respondent had altered medical reports and misrepresented expert opinions in a catastrophic impairment arbitration.

The motion judge dismissed the action under section 137.1 of the Court of Justice Act (Anti-SLAPP legislation), finding that although the expression related to a matter of public interest, the plaintiff failed to meet the merits threshold and the harm was outweighed by the public interest in protecting the expression.

The Court of Appeal allowed the appeal, finding that the motion judge erred in his application of sections 137.1(4)(a) and (b), and that the plaintiff had met his onus on both provisions.

The court also rejected constitutional challenges under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

The Applicants, ICP and JCP, each sought the appointment of an arbitrator under the Arbitrations Act, 1991, for disputes arising from a share offer and acceptance.

The court addressed whether the arbitrations should be consolidated, the appropriate size of the arbitration panel (single vs. three arbitrators), and the composition of the panel, including issues of res judicata regarding a prior ruling on panel size and reasonable apprehension of bias concerning a nominated arbitrator.

The court determined that separate arbitrations were required for QSA and PSA disputes, that a three-member panel was intended by the QSA, and appointed Mr. Ferrier and Mr. Scott to the QSA panel, rejecting Mr. Cunningham due to apprehension of bias.

The applicant, a landlord, sought judicial review of a City of North Bay by-law imposing licensing requirements on rental properties with multiple tenants.

She argued the by-law discriminated against students contrary to the Human Rights Code and the Charter, and conflicted with the Residential Tenancies Act.

The Divisional Court dismissed the application, finding that student status is not a protected ground, there was no evidence of adverse effects discrimination, and the by-law did not conflict with the Residential Tenancies Act.

The applicant brought a motion under Rule 59.06(2)(a) to set aside a previous Divisional Court decision dismissing her application for judicial review of a WSIAT decision.

She alleged fresh evidence of fraud based on a prior Tribunal decision.

The court dismissed the motion, finding it was an abuse of process and vexatious, as the issue had already been decided in previous proceedings.

Full indemnity costs of $5,500 were awarded against the applicant.

The applicant sought costs following her success on two motions regarding jurisdiction and the respondent's constitutional challenge based on aboriginal rights.

The applicant claimed $500,000 on a full recovery basis, including a risk premium.

The court rejected the inclusion of a risk premium in family law cases and found the respondent's conduct unreasonable but not amounting to bad faith.

The court fixed costs at $315,415 and ordered that the costs be designated as a support order enforceable by the Family Responsibility Office, as the underlying motions were necessary to clear the path for the applicant's support claims.

The respondent sought an order compelling the applicant to attend for cross-examination on her affidavit filed in support of a motion for advance funding of an appeal.

The applicant opposed the cross-examination.

The court dismissed the respondent's request, finding that the respondent was in breach of a disclosure order and that the court should not grant relief to a party not in compliance with court orders.

The court noted that the adequacy of the applicant's evidence and the evidentiary implications of her refusal to be cross-examined would be matters for the judge hearing the advance costs motion.

The Workplace Safety and Insurance Appeals Tribunal brought a motion to strike and dismiss an application for judicial review as an abuse of process.

The applicant had previously sought judicial review of a Tribunal decision regarding her non-economic loss benefit, which was dismissed by the Divisional Court.

She then brought a new application seeking judicial review of the Tribunal's reconsideration decision on the same issue.

The court found the new application to be an abuse of process and an improper collateral attack on the earlier Divisional Court decision, as the grounds were substantially the same and the issues had already been determined.

The motion was granted and the application was dismissed with costs.

The appellant, injured in 1997 while unloading goods from a truck, brought a civil action against the Workplace Safety & Insurance Board and the Workplace Safety & Insurance Appeals Tribunal seeking compensatory damages of $1,710,455 and punitive damages of $15 million.

The respondents moved to dismiss for lack of jurisdiction and to strike the pleadings as disclosing no reasonable cause of action.

The motion judge granted the motions, holding that the Superior Court lacks jurisdiction over claims against these bodies and that relief must be sought through judicial review.

The appellant appealed, arguing the motion judge erred in dismissing the claim for lack of jurisdiction and in striking the pleadings for failing to disclose a cause of action for bad faith or misfeasance in public office.

The Court of Appeal dismissed the appeal, holding that the statutory scheme under the Workplace Safety and Insurance Act vests exclusive jurisdiction in the Board and Tribunal, and that circumventing this scheme through a civil action constitutes an abuse of process.

The court also held that bad faith is not independently actionable and that the pleadings failed to disclose a reasonable cause of action for misfeasance in public office.

Following the dismissal of the self-represented plaintiff's $17 million action against the WSIB and WSIAT for lack of jurisdiction, the defendants sought costs.

The WSIB claimed $7,000 on a substantial indemnity basis, and the WSIAT claimed $3,000.

The court considered the principles of indemnification, reasonableness, and access to justice, noting that the plaintiff's claim, while lacking a viable cause of action in the Superior Court, was not frivolous or vexatious.

Recognizing the plaintiff's self-represented status and the need to balance access to justice with discouraging improper litigation, the court fixed costs at $3,000 payable to each defendant.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision denying her request to convert her non-economic loss (NEL) benefit from a lump sum to a monthly payment retroactive to 1993.

The applicant argued that her cumulative NEL awards exceeded the statutory threshold for monthly payments.

The Divisional Court dismissed the application, finding the Tribunal's interpretation of section 42 of the Workers Compensation Act—that the threshold applies to the amount of compensation as it is awarded, rather than cumulatively—was reasonable.

The defendant moved to set aside two ex parte orders that had extended the time for the plaintiff to serve its statement of claim, alleging the plaintiff failed to make full and frank disclosure.

The plaintiff cross-moved to further extend and validate service.

The court found that the plaintiff failed to disclose material facts, including the defendant's representation by counsel and the acrimonious relationship between the parties, which might have impacted the original ex parte orders.

Consequently, the ex parte orders were set aside.

However, the court exercised its discretion to grant the plaintiff an extension of time *nunc pro tunc* and validated service, finding that the just resolution of the dispute required adjudication on the merits and that the defendant did not suffer material prejudice from the delay.