Brian R. Kelly

In a wrongful dismissal action brought under the simplified procedure, the plaintiff moved for summary judgment seeking determination of the reasonable notice period and damages.

The court held that although reasonable notice issues may in appropriate cases be determined summarily using the Bardal factors, the case also raised a contested issue regarding whether the plaintiff reasonably mitigated her damages.

Evidence concerning the plaintiff’s job search and the availability of alternate nursing employment created a factual dispute that would benefit from oral evidence and cross‑examination.

Relying on guidance from Combined Air Mechanical Services Inc. v. Flesch regarding summary judgment in Rule 76 actions, the court found that deciding only the notice period would not promote procedural efficiency.

The motion was therefore dismissed and the matter directed to proceed toward trial.

Following a five‑day hearing on a motion to change child support, the court determined the appropriate costs award.

The responding party to the motion had unsuccessfully sought a retroactive reduction of child support after selling a dental practice and relocating abroad, and income had been imputed based on prior earnings.

The successful party sought substantial costs including partial and full indemnity rates.

Applying Rule 24 of the Family Law Rules and considering success, offers to settle, the parties’ conduct, and the complexity of the issues, the court found the successful party was entitled to costs but reduced the amount claimed.

The court fixed costs at a fair and reasonable figure rather than the full amount incurred.

The father brought a motion to change a 2000 divorce judgment, seeking to terminate child support for one child and adjust it for the other based on a reduction in his income after he sold his dental practice and moved to Honduras.

The court found the father was intentionally unemployed and under-employed, and that his health issues did not reasonably justify the sale of his practice.

The court imputed income to the father and determined the periods during which each child remained a 'child of the marriage' while pursuing post-secondary education.

The father was ordered to pay retroactive table support and his pro rata share of section 7 expenses for both children.

The applicant filed a human rights application alleging sex discrimination and reprisal in employment.

The respondent requested the application be dismissed, arguing he was an agent of the applicant's employer (Just Energy) and thus protected by a full and final release the applicant had signed with Just Energy.

The respondent also argued there was no employment relationship between him and the applicant.

The Tribunal dismissed the respondent's request, finding that the release was not intended to unconditionally extend its benefits to the respondent as a third party.

The Tribunal also found a sufficient nexus between the parties to constitute a relationship with respect to employment under the Code.

The self-represented moving party sought to review a single judge's decision dismissing his motion to extend the time to appeal a Small Claims Court judgment.

He argued that because he had an appeal as of right, the motions judge erred by considering the merits of the appeal.

The Divisional Court panel dismissed the motion, holding that an extension of time is an indulgence that requires the moving party to demonstrate an arguable case on the merits, regardless of whether the motion was filed before or after the deadline expired.

The appellant, a paralegal, acted as an agent for an accused in a Provincial Offences Act trial.

After the trial, the justice of the peace initiated proceedings under s. 50(3) of the Act and barred the appellant from appearing before him as an agent.

The appellant's application for certiorari was dismissed by the Superior Court.

On appeal, the appellant argued the justice of the peace lacked jurisdiction to make the order after the trial concluded and alleged a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding that the justice of the peace had jurisdiction under the second branch of s. 50(3), which relates to an agent's general conduct and understanding of their duties, and that there was no reasonable apprehension of bias.

The appellant appealed his conviction, arguing that the trial judge erred in assessing the credibility of a Crown witness who had given a prior inconsistent statement, and that the verdict was unreasonable.

The Court of Appeal found no error in the trial judge's review of the evidence or credibility assessment.

The court agreed with the summary conviction appeal judge that the verdict was not unreasonable, as it was open to the trial judge to accept the witness's evidence despite the prior inconsistency.

The appeal was dismissed.

Following the dismissal of the appellants' appeal in a collection action over a $1,200 invoice, the respondent sought costs on a substantial indemnity scale.

The court noted that the amount involved was minimal and the litigation was unnecessary, as the appellants had no reason to avoid payment.

The court awarded the respondent substantial indemnity costs fixed at $5,000 to avoid penalizing him for attempting to collect on his invoice.

The appellants appealed a Small Claims Court judgment ordering them to pay $3,745 in unpaid accounting fees to the respondent.

The dispute centered on the scope of the respondent's retainer and whether he was authorized to investigate a tax issue discovered during his review of reorganization documents.

The Divisional Court dismissed the appeal, finding that the trial judge correctly accepted the respondent's evidence regarding the scope of the professional retainer and that no substantial wrong or miscarriage of justice occurred.

The appellant appealed his conviction, arguing the trial judge misapprehended his evidence and misapplied the W.(D.) framework by approaching the case on an 'either/or' basis.

The Court of Appeal dismissed the appeal, finding that the trial judge properly weighed all the evidence, rejected the appellant's testimony, and accepted the evidence of the two young complainants who described similar incidents without collusion.

The appellant hatchery appealed decisions of the Ontario Broiler Hatching Egg and Chick Commission (OBHECC) assessing fines for obstructing an inspector, failing to report bird sales, and failing to produce requested information.

The appellant also requested the Tribunal to order OBHECC to issue Hatching Egg Market Share for special dual purpose birds.

The Tribunal dismissed the request regarding market share for lack of jurisdiction, as the appellant had not first applied to OBHECC.

After hearing evidence, the Tribunal upheld all fines, finding that the appellant knowingly failed to fulfill its obligations under the regulated marketing scheme.