Brian J. Smith

The appellant, who suffered a catastrophic brain injury in a 1999 motor vehicle accident, appealed and sought judicial review of a Licence Appeal Tribunal decision regarding his entitlement to attendant care benefits.

The LAT had awarded a minimal monthly amount, focusing on the care actually provided by his family rather than his need for supervisory care due to his inability to respond to emergencies.

The Divisional Court allowed the appeal and granted the judicial review, finding that the adjudicator erred in law by failing to apply the correct legal test under the 1996 SABS and that the decision was unreasonable.

The matter was remitted for a new hearing before a different adjudicator.

The appellant father appealed an interim order allowing the respondent mother to relocate with their two children from Toronto to Winnipeg.

The mother sought the move after obtaining a higher-paying job in Winnipeg, where she also had extended family support.

The father argued the motion judge erred in finding a material change in circumstances, applying a summary judgment test, and failing to assess the impact on his relationship with the children.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error of fact in the motion judge's application of the Gordon v. Goertz and Barendregt frameworks, and noting the motion judge had appropriately considered the children's best interests under the Divorce Act.

The court denied the defendants' motion to adjourn a scheduled trial pending the outcome of a Workplace Safety and Insurance Appeals Tribunal (WSIAT) application.

The court found that the defendants delayed bringing the application and that the interests of justice, including the plaintiff's need for timely resolution and access to treatment, outweighed the defendants' arguments.

The court ordered the trial to proceed as scheduled and awarded costs to the plaintiff.

Following a successful motion by the defendant to compel the plaintiff to attend a neuropsychological assessment, which necessitated a trial adjournment, the parties made written submissions on costs.

The court awarded the defendant partial indemnity costs of $4,868.71 for the motion.

However, because the defendant delayed in arranging the assessment and notifying the plaintiff, the court awarded the plaintiff $3,762.90 for costs thrown away on wasted trial preparation.

The net costs award of $1,106.71 was ordered payable by the plaintiff to the defendant in any event of the cause.

The defendant, Diane Marie Daniher, brought a motion seeking leave to compel the plaintiff, Ryan Nelson, to attend an independent neuropsychological examination.

The motion was brought after the action had been placed on a trial list, requiring leave under Rule 48.04(1).

The court found that a recently served neuropsychological report by the plaintiff's expert, Dr. Cancelliere, presented an unexpected and substantial change in evidence regarding the severity and etiology of the plaintiff's traumatic brain injury, differing from a previous expert's opinion.

The court granted leave and ordered the examination, concluding that the prejudice to the defendant in proceeding to trial without an opportunity to respond to the new expert evidence outweighed the prejudice to the plaintiff from an inevitable trial adjournment.

The appellant insurance company appealed a summary judgment order that found the respondents (an adult son, his wife, and their daughter) were covered under the homeowner's policy of the named insured (their mother/mother-in-law) as relatives "living in the same household." The named insured owned a house that served as her primary residence until she entered a nursing home, after which the respondents used it as a cottage.

The Court of Appeal allowed the appeal, holding that "household" in insurance law refers to a type of community requiring intimacy, unity, and permanence, not merely physical residence.

The respondents maintained separate lives in the city and did not share a common life with the named insured meeting these requirements.

Appeal of summary judgment dismissal in a negligence action arising from a fatal motor vehicle accident.

The plaintiff's estate and family sued social hosts for damages, alleging the hosts owed a duty of care when the intoxicated guest drove home and subsequently drove his children and their babysitter, resulting in a fatal collision.

The motion judge dismissed the claims, finding no duty of care existed and alternatively that any duty ended when the guest arrived home safely.

The Court of Appeal allowed the appeal, finding genuine issues of fact regarding foreseeability and proximity that required trial, and rejecting the proposition that a social host's duty of care automatically expires upon an intoxicated guest's safe arrival home.

The Court dismissed the appeal and upheld decisions finding that complaints challenging Indian Act registration provisions were bare attacks on legislation, not discrimination in the provision of services under s. 5 of the Canadian Human Rights Act.

The Tribunal’s dismissal was upheld because legislation itself is not a service under that provision.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend their mutual insured in an underlying environmental contamination action.

The underlying action alleged that fuel oil migrated from the insured's property to a neighbouring property.

The respondent denied coverage based on an environmental liability exclusion clause.

The court found that the respondent had a duty to defend because the pleadings left open the possibility that the initial escape of contaminants was 'sudden and accidental', which would trigger an exception to the exclusion clause.

The court ordered the insurers to share the defence costs equally based on equitable principles.

The plaintiff commenced an action arising from a 2006 motor vehicle accident but failed to serve the Statement of Claim within the required time.

The defendant argued the action was deemed dismissed under the revoked Rule 48.15(6) because no step was taken between 2010 and 2012.

The court held that an unsuccessful attempt to serve the claim in 2011 constituted a 'step' in the proceeding, preventing the deemed dismissal.

Alternatively, the court exercised its discretion to order that the rule did not apply.

Finding no prejudice to the defendant, the court granted the plaintiff's motion to extend the time for service and validated the late service.

The defendant dentist brought a motion for partial summary judgment in a dental malpractice action, arguing that claims relating to treatment before a specified date were statute‑barred under the Limitations Act, 2002.

The plaintiffs had originally commenced an action concerning later dental treatment but later amended the pleading to include earlier procedures and alleged failures to treat additional teeth.

The court held that the amendments asserted new causes of action rather than merely providing further particulars of the original claim.

Applying the discoverability principles under ss. 4 and 5 of the Limitations Act, the court found the plaintiffs knew or ought to have known of the potential negligence years earlier based on communications with subsequent dental specialists.

The claims relating to treatment before the specified date were therefore outside the limitation period.

In a costs endorsement following motions brought by co-defendants, the court held that a responding defendant was entitled to recover costs from the unsuccessful moving defendants because her participation was reasonable and directly engaged her vital interests.

The court declined to award costs against an insurer whose stay motion concerned only the contractual claim between it and the plaintiff.

Applying the principles that costs generally follow the event and must remain fair, reasonable, and proportionate, the court reduced the hours claimed and fixed costs on a partial indemnity basis.

Costs of $1,921.00 inclusive of HST were awarded against the moving co-defendants only.

On a summary judgment motion by a commercial alcohol vendor added years after a motor vehicle accident, the court considered both a limitations defence and the substantive negligence claim.

Applying the post-amendment Rule 20 framework, the court held the discoverability issue under the Limitations Act, 2002 could not fairly be resolved summarily because the record left genuine issues requiring trial concerning diligence and when the vendor's alleged involvement ought to have been known.

However, the court concluded there was no genuine issue requiring trial on breach of the standard of care.

On the evidentiary record, the plaintiff could not prove that the vendor knowingly sold to a minor, sold to someone who appeared underage, or had apparent reason to doubt the authenticity of the identification presented.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission not to refer his employment discrimination complaint to a tribunal.

The complaint alleged discrimination based on race and colour.

The Divisional Court held that the standard of review was reasonableness and found that the Commission reasonably concluded there was insufficient evidence to warrant a referral.

The application for judicial review was dismissed with costs awarded to the respondent.

The applicant sought costs following an application for judicial review and a stay motion that were granted on consent.

The court rejected the Commission's proposed costs of $3,500 as inadequate.

Costs for the application and stay motion were fixed at $10,000, with an additional $1,500 awarded for the day's appearance.

The applicant, Toronto Police Services Board, brought a motion for a stay of proceedings before the Human Rights Tribunal pending its application for judicial review.

The applicant argued it was denied procedural fairness when the Ontario Human Rights Commission referred the complaint to the Tribunal without providing an amended complaint or addressing the complainant's delay.

The Divisional Court found the applicant satisfied the three-part test for a stay, noting serious issues regarding procedural fairness and jurisdiction, and that proceeding before the Tribunal would render the judicial review moot.

The motion for a stay was granted and an expedited hearing for the judicial review was directed.

Following a successful application for judicial review that prohibited the Ontario Human Rights Tribunal from hearing a complaint, the applicant sought substantial indemnity costs against the Commission and the Tribunal for both the judicial review and the underlying human rights proceedings.

The Divisional Court held it lacked jurisdiction under the Human Rights Code or the Courts of Justice Act to award costs for the tribunal proceedings.

For the judicial review, the court awarded partial indemnity costs of $20,563.57 against the Commission alone, finding the hours claimed by the applicant excessive and declining to award costs against the Tribunal as it had not engaged in misconduct or taken an adversarial position on the merits.

The applicant sought judicial review of an interim decision by the Human Rights Tribunal of Ontario, which found it had jurisdiction to hear a complaint regarding a withdrawn job offer following a positive pre-employment drug test for marijuana.

The Divisional Court held that the Tribunal erred in law by failing to dismiss the complaint, as recreational marijuana use without actual or perceived disability does not fall under the protected ground of disability in the Human Rights Code.

The Court granted an order of prohibition preventing the Tribunal from hearing the complaint.

The applicant sought an order of prohibition to prevent the Human Rights Tribunal of Ontario from hearing a complaint referred to it by the Ontario Human Rights Commission.

The Divisional Court allowed the application, finding that the Tribunal lacked jurisdiction to hear and determine the complaint, and that the Tribunal was incorrect or unreasonable in deciding it had jurisdiction.

The complaint was dismissed, with detailed reasons to follow.

The appellant father appealed an order determining his access to the children between 4:00 and 6:00 p.m. on 'exceptional days' when they were not in school, an issue left open by minutes of settlement.

The Court of Appeal found that the trial judge committed no error in principle in determining the issue and declining to re-open it.

The appeal was dismissed with costs awarded to the respondent.