Brendan van Niejenhuis

The appellant, a licensed owner and trainer, appealed the immediate suspension of his licence following a positive test for marijuana.

The Ontario Racing Commission accepted a proposed restorative justice agreement between the Administration and the appellant.

Under the agreement, the appellant must participate in a restorative justice process, meet with a substance abuse professional, and pay a $1,000 fine for breaching a previous post-violation agreement before his licence can be reinstated.

The plaintiff sought leave to enforce a consent judgment obtained following a settlement agreement arising from a large employee fraud.

The moving party argued that the defendant had materially breached the settlement agreement by failing to disclose assets, gifts, and financial transactions and by failing to account for significant proceeds obtained from resale of goods purchased through the fraud.

The court held that the consent judgment was contractually linked to the settlement agreement and therefore subject to conditions restricting enforcement against the defendant’s residence unless a material breach occurred.

The court found multiple material breaches, including undisclosed loans, gifts, assets, and evasive disclosure regarding hundreds of thousands of dollars in proceeds.

The breaches removed the contractual protection against execution.

Leave was granted nunc pro tunc for issuance of a writ of seizure and sale.

The appellant municipalities appealed the certification of two class actions alleging that charitable lottery licensing fees were ultra vires direct taxes.

The appellants argued that the class definition, which included claims dating back to 1990, was overly broad and included presumptively time-barred claims.

The Court of Appeal allowed the appeal in part, modifying the class definition to align with the 15-year ultimate limitation period under the Limitations Act, 2002.

The Court also created a subclass for the presumptively time-barred claims but held that the representative plaintiffs could represent both the main class and the subclass, and that a class proceeding remained the preferable procedure.

Four standardbred racehorse trainers appealed penalties imposed after their horses tested positive for Isoxsuprine, a Class IV drug.

The trainers argued entrapment, officially induced error, due diligence, and waiver.

The Ontario Racing Commission panel found no evidence to support entrapment or officially induced error, and insufficient foundation for a waiver.

However, the panel found that each trainer established due diligence by consulting their veterinarians and following prescribed treatment plans for their horses' health issues.

Consequently, the panel allowed the appeals in part, reducing the penalties to a $100 fine and no suspension for each appellant, while upholding the mandatory disqualifications and purse redistributions.

The appellant lawyer appealed the Law Society Tribunal Appeal Division's decision to revoke his licence for professional misconduct.

The appellant argued that the penalty was disproportionate because the most serious charge of misappropriation was dismissed, and his misconduct was caused by severe depression.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable.

The Court noted that the appellant's failure to acknowledge his dishonest conduct undermined his psychiatric evidence and failed to reassure the public and the profession of his integrity.

The appellant, a horse trainer, appealed the Director's decision denying a stay of a suspension related to a positive drug test for a Class II drug.

The Commission heard evidence that the appellant's veterinarian followed CPMA guidelines, administered half the recommended dosage, and allowed extra time for metabolization.

Finding that the appellant had a good record and committed no wrongdoing, the Commission granted the stay with standard conditions pending the full appeal hearing.

The plaintiff brought a motion for summary judgment seeking repayment of a $400,000 loan advanced for the production of a film.

The borrower and guarantor argued that a separate agreement governing distribution of film revenues subordinated repayment of the loan until other liabilities were satisfied and effectively transformed the loan into a risk investment.

The court held that the loan agreement and promissory note clearly provided that the loan was payable on demand and were not modified by the revenue-sharing agreement.

The defendants’ interpretation would contradict the express contractual language and render the loan agreement meaningless.

Summary judgment was granted for the full loan amount plus interest.

The licensee, a standardbred racehorse trainer, appealed a Proposed Order by the Director of the Ontario Racing Commission alleging he participated in racing while his licence was suspended.

The Commission found that despite transferring his horses to another trainer, the licensee maintained significant involvement in their care, banking, and sale, and had extensive contact with the new stable staff.

The Commission concluded the licensee participated directly or indirectly in racing while suspended, violating Rule 6.10.01.

The Director's application was granted, and the licensee was suspended for over nine months and fined $5,000.

The appellant, a thoroughbred trainer, applied for a stay of a suspension ruling pending his appeal.

The Commission considered the tests for a stay, noting the appellant's clean record and the existence of a triable issue regarding the chain of custody of a sample.

Finding that the balance of convenience and fairness favoured the appellant, and that the public interest would not be adversely affected, the Commission granted the stay subject to conditions, including no further rule violations and allowing out-of-competition testing.

The Director of the Ontario Racing Commission applied for a declaration that the licensee participated in racing while his licence was under suspension.

The panel granted the application, finding a violation of Rule 6.10.01 of the Rules of Standardbred Racing.

The licensee was suspended for nine months and five days and fined $5,000.

The appellant, a horse trainer, appealed a ruling that denied him a stay of his suspension following a positive test for a trace amount of cocaine in a horse.

The Ontario Racing Commission panel applied the Czupa test for granting a stay.

Considering the appellant's long history in the industry with a clean record, the balance of convenience, and fairness, the panel allowed the appeal and granted the stay, ordering that the hearing of the main appeal be expedited.

The moving party regulator brought a motion to strike a lengthy statement of claim alleging various wrongs arising from disciplinary proceedings, settlement agreements, trustee services, and bankruptcy matters.

The court held that many allegations were barred by a prior settlement and release, constituted impermissible collateral attacks on regulatory decisions, were statute-barred, or disclosed no reasonable cause of action.

The court considered whether the pleadings could support the tort of misfeasance in public office but found that the material facts alleged did not establish deliberate unlawful conduct or knowledge of likely harm.

Even accepting the pleaded facts as true, the claim could not succeed in law and amendment would not cure the defects.

The action against the regulator was therefore dismissed and costs were awarded.

Lyle MacArthur appealed against standardbred track judges' rulings imposing a 60-day suspension, a $1,500 fine, and two years' probation after his horse tested positive for a TCO2 overage.

The parties presented a joint submission indicating that an interaction between two permitted therapeutic substances was a causal factor in the overage.

The Ontario Racing Commission accepted the joint submission and varied the penalty by staying 15 days of the 60-day suspension.

The appellants appealed rulings suspending their thoroughbred racing licences for failing to pay a veterinary debt.

The Ontario Racing Commission adjourned the appeal sine die and granted a stay of the suspensions, conditional on the appellants making scheduled payments to the veterinary clinic and providing proof of full satisfaction of the debt.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings regarding the restitution of allegedly illegal lottery licensing fees.

The motions judge had certified all claims going back to 1990, including those that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the certification order, particularly regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues to be of general importance to the development of class action law.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings seeking restitution of lottery licensing fees, including claims that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the motions judge's analysis regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues raised were of general importance to the development of class action law.

A motion sought to transfer a proceeding involving equity derivative transactions between two financial institutions to the Toronto Region Commercial List under the “basket clause” of the Commercial List Practice Direction.

The dispute concerned the interpretation and adjustment of settlement mechanisms under ISDA confirmations following a corporate restructuring affecting securities in the derivative basket.

The court reviewed the principles governing transfer to the Commercial List, including whether the matter is in essence commercial, its complexity, the number of parties, and considerations of efficient case management.

The court held that disputes involving the interpretation or performance of complex derivative transactions fall within the type of commercial matters commonly heard on the Commercial List.

The motion to transfer was granted and the parties were directed to attend a subsequent appointment to schedule the proceeding.

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.