Brennagh Smith

The defendant requisitioned a review of the plaintiff's statement of claim under Rule 2.1 of the Rules of Civil Procedure.

The self-represented plaintiff sought damages against city and shelter executives regarding shelter standards and complaint handling.

The court found that the statement of claim failed to plead facts supporting a legally recognized cause of action against the named defendants.

Concluding that the action could not succeed and contained elements of a vexatious litigant, the court dismissed the action as frivolous and vexatious on its face.

The applicant alleged that the respondent police service discriminated against him with respect to services because of his ethnic origin, specifically by failing to adequately investigate and prosecute three alleged assaults against him.

The Tribunal found that the police did investigate the incidents and exercised appropriate discretion in not laying charges.

The Tribunal preferred the evidence of the police officers over the applicant's inconsistent testimony and concluded there was no evidence that the officers' decisions were influenced by the applicant's ethnic origin or any other Code ground.

The application was dismissed.

Following dismissal of the plaintiff’s action after trial, the defendant sought costs relying on a Rule 49 offer to settle that proposed dismissal without costs.

The defendant requested $45,000 inclusive based on substantial indemnity principles after the plaintiff rejected the offer and lost at trial.

The court accepted that the offer was more favourable than the trial outcome and that the defendant had defended the matter efficiently.

However, considering the plaintiff’s limited financial means and self-represented status, the court exercised its discretion to reduce the award.

Costs were fixed at $20,000 inclusive of disbursements and HST.

The plaintiff brought a civil claim for false arrest against the defendant police services board arising from his arrest at home following a domestic disturbance.

The court applied the two-stage analysis for false arrest, requiring the plaintiff to prove detention and the defendant to justify the arrest as lawful.

Police had responded to a 911 call from the plaintiff’s spouse reporting violent conduct, including smashing glassware and displaying threatening behaviour in a home containing numerous weapons.

Considering the officers’ observations, the complainant’s distress, and prior domestic violence history, the court held that the officers had reasonable and probable grounds to arrest for assault with a weapon under the Criminal Code.

The claim was dismissed.

The applicant filed a human rights application alleging discrimination by a police constable approximately six years after the events in question.

The Tribunal held a preliminary hearing to determine if there was a good faith explanation for the delay under section 34 of the Human Rights Code.

The applicant cited physical and mental health issues, ongoing litigation, and a period of incarceration as reasons for the delay.

The Tribunal found that these factors did not adequately explain the seven-year delay, particularly since the applicant's disability had not changed when he eventually filed the application.

The application was dismissed for lack of jurisdiction.

The husband brought a motion for summary judgment to dismiss the wife's claims to set aside their separation agreement and for spousal support and equalization.

The wife alleged the husband failed to provide accurate financial disclosure regarding the value of his business, and that the agreement was signed under duress and without independent legal advice.

The court granted the summary judgment motion, finding no genuine issue for trial.

The court held that the wife, a lawyer who had access to the husband's financial information, chose not to investigate the values provided and could not now rely on alleged non-disclosure to set aside the agreement.

The court also found no evidence of duress or unconscionability, and upheld the spousal support release under the Miglin framework.

Following a prior decision granting declaratory relief for infringement under the Trade-Marks Act and Competition Act, the court addressed whether costs should be awarded before the quantification of damages on a reference.

The respondent argued that costs should be deferred until damages were determined in order to respect the principle of proportionality.

The court held that s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure confer discretion to award costs for a proceeding or a step in a proceeding even before damages are quantified.

Given the applicant’s substantial success on liability and the final nature of the declaratory relief, the court ordered that costs be payable forthwith on a partial indemnity basis, while allowing the respondent to make written submissions on the quantum of costs.

The applicant alleged that the respondent distributed a brochure containing false and misleading statements about the applicant’s water heater rental services.

The court considered whether the brochure breached s. 7(a), s. 22, and s. 53.2 of the Trade-Marks Act and s. 52 of the Competition Act by discrediting a competitor and depreciating the value of goodwill attached to registered trade-marks.

The court found the brochure contained inaccurate and misleading representations and improperly reproduced the applicant’s trade-mark and logo.

The court concluded the respondent’s conduct breached the Trade-Marks Act and the Competition Act.

A declaration of breach was issued, a permanent injunction granted restraining further distribution of the brochure, and a reference ordered to determine damages.

The appellant appealed the dismissal of his libel action against the CBC and Warren Kinsella.

The trial judge had dismissed the action as statute-barred because the appellant failed to provide notice within six weeks after the alleged libel came to his attention, as required by s. 5(1) of the Libel and Slander Act.

The Court of Appeal upheld the trial judge's finding that the appellant could reasonably have known of the libel earlier and failed to act diligently to ascertain the facts after learning the gist of the broadcast.

The appeal was dismissed with costs of $25,000.

The Crown appealed a 12-month conditional sentence imposed on the respondent for arson of his own property.

The Crown argued the offence should have been designated a serious personal injury offence (SPIO), making a conditional sentence illegal, and that the sentence was demonstrably unfit.

The Court of Appeal declined to entertain the SPIO argument as it was not raised at trial.

The Court upheld the sentence, finding the sentencing judge properly balanced the gravity of the offence with the respondent's attenuated moral blameworthiness due to mental health challenges.

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.

The appellant appealed a trial judgment ordering the repayment of a shareholder's loan.

The trial judge found that the loan, which had no fixed term, was payable within a reasonable period of time after a demand for payment was made.

The Court of Appeal dismissed the appeal, holding that the trial judge's conclusion was a finding of fact supported by the evidence, including the directors' intentions, financial statements, and the hybrid character of the loan.

A cross-appeal regarding the date from which pre-judgment interest runs was also dismissed.

The appellant, a standardbred licensee, appealed a Judges' Ruling that suspended him for ten days and fined him $500 for using offensive language and engaging in improper conduct towards racing officials.

During a meeting, the appellant became angry, tore up a Notice of Hearing, threw the pieces at a judge, and physically shoved another judge.

The Ontario Racing Commission denied the appeal, finding the appellant's admissions and the officials' testimony clearly established the violations of the rules of racing.

The applicant sought judicial review of a decision by the Ontario Labour Relations Board.

The Board had dismissed ten applications for certification by the respondent union, finding it was not a construction industry trade union under s. 126(1) of the Labour Relations Act.

The Board also made obiter comments regarding s. 15 of the Act.

Because the applicant was successful before the Board in having the certification applications dismissed, the Divisional Court found the application for judicial review to be moot.

Applying the Borowski factors, the Court declined to hear the application, noting there is no public interest in reviewing obiter comments that did not form the ratio of the Board's decision.

The application was dismissed with costs.

The appellant, a thoroughbred trainer, appealed a Stewards' decision suspending him for one year and fining him $5,000 after his horse tested positive for codeine and morphine, both Class I drugs.

The appellant argued the positive test resulted from environmental contamination, specifically poppy seeds or human source contamination.

The Commission rejected this defense, finding it could not account for the presence of codeine and that the appellant failed to meet the strict liability standard of taking all reasonable care to protect the horse.

The appeal was denied, but the Commission stayed the last two months of the 12-month suspension in recognition of the appellant's previous good record.

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The applicant sought judicial review of an Ontario Racing Commission decision that upheld Woodbine Entertainment Group's (WEG) indefinite suspension of his racing privileges.

The suspension followed the discovery of Erythropoetin (EPO) in three of the applicant's horses.

The Divisional Court dismissed the application, finding that the Commission reasonably balanced WEG's private property and contractual rights with the public interest in maintaining the integrity of the horse racing industry.

The applicant sought judicial review of a penalty imposed by the Ontario Racing Commission for an EPO infraction.

The applicant argued that a Notice to the profession issued by the Commission constituted an error of law and that the penalty was unreasonable.

The Divisional Court dismissed the application, finding that the Notice was merely a declaration of intention to impose more severe penalties and that the Commission's penalty decision deserved deference.

Costs of $5,000 were awarded to the respondent.