Brendan van Niejenhuis

The applicant sought judicial review of an Ontario Racing Commission decision upholding a fine and suspension after his horse tested positive for banned substances.

The applicant challenged the validity of the Commission's rule imposing absolute liability on trainers for positive drug tests, arguing that a due diligence defence must be available.

The Divisional Court dismissed the application, holding that the Commission's broad statutory mandate to regulate horse racing in the public interest authorized the creation of an absolute liability rule.

The Court also found the Commission's rejection of the applicant's due diligence defence to be reasonable.

The applicant sought judicial review of a decision by a Panel of the Ontario Racing Commission, which found that the respondent was not obliged to pay $100,000 in investigatory costs.

The Panel concluded that the applicant's Director had given the respondent the option to not renew its licence and avoid paying the costs, an option the respondent accepted.

The Divisional Court held that the Director had the discretion to offer this option and that the Panel's decision was reasonable and correct.

The application for judicial review was dismissed.

The appellants successfully appealed a motion judge's decision limiting the scope of their class proceedings based on the Limitations Act.

The Divisional Court, however, refused to award the appellants their costs of the appeal, finding success was divided, and remitted the costs issue to the motion judge.

The Court of Appeal allowed the appeal on costs, holding that the Divisional Court erred in principle by mischaracterizing the appellants' success and by failing to apply the general rule that the costs of a successful appeal should be awarded to the appellant and not depend on the outcome of a rehearing.

The applicant sought judicial review of a decision by the National Committee on Accreditation (NCA) refusing to recognize his foreign law degree due to his Third Class Honours standing.

The applicant argued the assessment process contravened the Fair Access to Regulated Professions Act, 2006.

The Divisional Court dismissed the application, finding the NCA's decision was reasonable, based on objective criteria, and that the accreditation process was fair and lawful.

The City of Toronto appealed a Divisional Court order certifying a class proceeding brought by a rooming house tenant.

The plaintiff alleged the City negligently failed to deliver statutorily-mandated rent reduction notices to tenants targeted by the Parkdale Pilot Project.

The Court of Appeal dismissed the appeal, finding it was not plain and obvious that the City owed no private law duty of care to this specific subgroup of tenants, and that policy considerations would not inevitably negate such a duty.

A jockey brought a civil action alleging malicious prosecution against racing stewards and the provincial racing regulator after his one‑year suspension for failing to persevere with his mount was overturned on appeal by the regulator.

The defendants moved for summary judgment.

The court held that issue estoppel and abuse of process barred the action because the propriety of the stewards’ investigation and their alleged malice had already been addressed in a full de novo hearing before the regulatory tribunal.

In any event, the plaintiff failed to establish essential elements of the tort of malicious prosecution, including absence of reasonable and probable cause and malice.

Summary judgment was granted dismissing the action.

The appellants succeeded on a limitation issue in a class action appeal and sought costs for the appeal and the motion below.

The Court of Appeal declined to alter the motion judge's order that costs of the motion remain in the cause.

For the appeal, the court recognized the appellants' success but modified the costs award because the appeal raised a novel issue of law and involved access to justice considerations in a class action.

The court awarded costs of the appeal in the cause, fixing them at $20,000 for the Timminco appellants, $20,000 for the Photon Consulting appellants, and $10,000 for the Walsh appellant.

The Ontario Harness Horse Association sought judicial review of a decision by the Ontario Racing Commission to redistribute purse monies among racetracks.

The Commission had adopted a Framework to move purse funds from racetracks with profitable slot machine operations to those with more active wagering to re-invigorate horse racing.

The applicant argued the Commission lacked jurisdiction, claiming it conflicted with federal pari-mutuel regulations and interfered with existing contractual rights.

The Divisional Court dismissed the application, finding the Commission had broad regulatory authority under the Racing Commission Act, 2000, that its actions did not conflict with federal regulations, and that its regulatory powers permitted incidental interference with existing contracts.

The plaintiff commenced a proposed class action alleging secondary market misrepresentations by the defendants.

The statement of claim asserted common law causes of action and indicated an intention to seek leave to assert a statutory cause of action under section 138.3 of the Securities Act.

Facing a potential limitation issue, the plaintiff successfully moved for a declaration that the limitation period was suspended under section 28 of the Class Proceedings Act.

The defendants appealed.

The Court of Appeal allowed the appeal, holding that a statutory cause of action under section 138.3 is not 'asserted' within the meaning of section 28 until leave to proceed has been granted.

The appellant appealed the dismissal of his motion to certify a class proceeding against the City of Toronto.

The proposed class action alleged the City was negligent in failing to send statutory notices of rent reduction to tenants of rooming houses after municipal property taxes were reduced.

The motions judge had found it plain and obvious that the City owed no duty of care to the tenants.

The Divisional Court allowed the appeal, finding that based on the statutory scheme and the specific relationship created by the Parkdale Pilot Project, it was not plain and obvious that the City owed no duty of care.

The proceeding was certified as a class action.

The applicant, a licensed standardbred trainer, sought judicial review of a decision by a panel of the respondent commission, which upheld findings of guilt and increased penalties related to the treatment of a horse.

The applicant was entitled to a hearing conducted as a trial de novo.

The Divisional Court found that the panel fundamentally erred by treating the hearing as a review of the initial judges' decision and applying a reasonableness standard of review, rather than determining the charges on a balance of probabilities.

The application was granted, the decision set aside, and the matter remitted for a new hearing before a differently constituted panel.

The applicants sought judicial review of a decision by the Ontario Racing Commission, which upheld a private racetrack's decision to suspend the applicant owner's racing and stabling privileges following the death of a 13-year-old racehorse during training.

The Divisional Court dismissed the application, finding that the Commission had jurisdiction to determine whether the public interest warranted interfering with the racetrack's private property rights.

The Court held that the Commission's decision was procedurally fair and reasonable, as the evidence supported the finding that the applicant failed to take reasonable precautions regarding the horse's fitness.

The appellant racetrack owner refused to permit the respondent to race his horses at its tracks unless he signed an access agreement.

The respondent refused and sought a declaration from the Ontario Racing Commission (ORC) that he could not be required to sign the agreement.

The ORC dismissed the application, but the Divisional Court found the ORC's decision unreasonable.

On appeal, the Court of Appeal held that the ORC's decision was reasonable, as the access agreement did not deny the respondent an opportunity to be heard before the ORC, nor did it give the appellant absolute unfettered power to arbitrarily exclude him.

The appeal was allowed and the ORC's decision restored.

The applicants sought judicial review of a decision by the Ontario Racing Commission that reinstated the original results of a horse race, overturning a prior decision by the track Stewards regarding interference.

The applicants argued they were denied procedural fairness due to lack of notice, alleged a reasonable apprehension of bias, and challenged the tribunal's findings of fact.

The Divisional Court dismissed the applications, finding that actual notice was established, there was no evidence of bias, and the tribunal's factual findings were reasonable and supported by the evidence.

The appellant appealed a decision declaring that a partnership did not exist between the parties under the Partnerships Act.

The parties had collaborated to develop and deliver continuing professional development programs.

The Court of Appeal found that the application judge erred in law by failing to analyze the provisions of the agreements and the circumstances in relation to the legal elements of the test for partnership.

Applying the correct test, the Court concluded that the parties were carrying on a business in common with a view to profit, and declared that a partnership existed.

The matter was remitted to the Superior Court to determine the value of partnership assets.

The appellant, a former employee of a Toronto Stock Exchange (TSE) member, appealed a decision of the Ontario Securities Commission (OSC) which upheld a ruling by Market Regulation Services Inc. (RS).

The OSC found that the Universal Market Integrity Rules (UMIR) were enforceable against the appellant for conduct that occurred during his employment, despite his subsequent resignation.

The Divisional Court dismissed the appeal, finding it reasonable for the OSC to conclude that the TSE validly adopted the UMIR and that RS had jurisdiction to discipline former employees for misconduct committed while they were employed by a TSE member.

The applicant, a licensed standardbred horse trainer and owner, sought judicial review of an Ontario Racing Commission (ORC) decision that upheld Woodbine Entertainment Group's (WEG) refusal to allow him to enter horses to race unless he signed an Access Agreement.

The Divisional Court held that while WEG could impose track rules and require an Access Agreement, the ORC acted unreasonably in permitting WEG to insist on terms that purported to give WEG absolute unfettered power to exclude licensed participants without fault or procedural fairness.

The application for judicial review was granted in part, prohibiting WEG from excluding the applicant's horses solely for refusing to sign the current Access Agreement.

Following the dismissal of the appellant's appeal regarding a claim to Casino Rama profits, the successful respondents sought costs on a full or substantial indemnity scale, citing the appellant's conduct and shifting theories.

The Court of Appeal declined to award elevated costs, finding the appellant's conduct was not reprehensible, scandalous, or outrageous.

Costs were awarded on a partial indemnity scale, fixed at $250,000 for the Chiefs of Ontario and OFNLP, and $75,000 for Ontario.

The applicant, a police officer facing disciplinary proceedings, sought judicial review of a Hearing Officer's interlocutory decision dismissing his motion to stay the charges for abuse of process and lack of jurisdiction.

The Divisional Court dismissed the application as premature, holding that the applicant should proceed through the statutory appeal process after a final decision.

The Court also addressed the jurisdictional argument on its merits, finding that the Hearing Officer reasonably and correctly interpreted the Police Services Act in concluding that an investigation need not be entirely completed before a notice of hearing is issued.

The Chippewas of Mnjikaning First Nation (MFN) appealed the dismissal of its action claiming a 35% share of net profits from Casino Rama.

MFN argued that its selection as the host site for the casino created a binding contract with Ontario based on its submitted proposal.

The Court of Appeal upheld the trial judge's findings that the site selection process did not constitute a binding tender or RFP process for revenue sharing, and that revenue sharing was intended to be negotiated separately among all First Nations.

The Court also rejected MFN's arguments regarding breach of fiduciary duty, misapprehension of the Aboriginal context, and reasonable apprehension of bias arising from the trial judge's interventions.