Brodie Michael White Noga

In a constitutional compliance review arising from Robinson-Superior Treaty augmentation litigation, the moving parties challenged both the Crown's engagement process and the compensation amount set after negotiations failed.

The court held that although aspects of engagement, including late disclosure of reliance on per-capita benchmarking against a related treaty settlement, caused serious relational harm, the reviewing role required deference to a range of honourable discretionary outcomes.

Applying a sui generis review framework grounded in honour of the Crown and reconciliatory justice, the court concluded the Crown's ultimate compensation determination of $3.6 billion plus agreed costs was justified in the legal and factual context.

The court therefore declined to intervene in the compensation decision while also addressing allocation issues between federal and provincial Crown responsibility in the reasons.

Ontario brought a motion to adjourn the Stage Three trial of a complex treaty rights claim sine die, pending the Supreme Court of Canada's decision on the appeal of Stage One and Stage Two.

The plaintiffs, interveners, and Canada opposed the motion.

The court applied the test for an adjournment, balancing the interests of the parties and the administration of justice.

The court found that the risk of proceeding was manageable, while the prejudice to the plaintiffs and the administration of justice caused by further delay would be significant.

The motion to adjourn was dismissed.

The plaintiffs appealed case conference orders directing that the defendants' liability be determined by summary judgment motions involving viva voce cross-examination of five expert witnesses.

The Divisional Court held that while a case conference judge has jurisdiction to make orders involving powers under Rule 20.04, such jurisdiction should be exercised sparingly.

The court found the case conference judge erred in principle by making the orders without an evidentiary record and by inverting the proper analysis.

The appeal was allowed, the orders were set aside, and the liability case against the Eaton Centre defendants was directed to proceed to trial.

The appellants (owners) appealed a trial judgment awarding the respondent (contractor) damages and a construction lien for unpaid work and lost profits under a fixed-price residential construction contract.

The owners had terminated the contract mid-construction, alleging fundamental breach due to unilateral design changes and delays.

The trial judge found the owners were responsible for design flaws, the contractor's changes were necessary and approved, and there was no fundamental breach justifying termination.

On appeal, the Divisional Court upheld the trial judge's findings, concluding there was no palpable and overriding error in the assessment of fundamental breach, the valuation of the work completed, or the award for lost profits.

The court also rejected the owners' argument that the trial judge's negative credibility findings against them demonstrated a reasonable apprehension of bias.

The plaintiffs brought motions for leave to appeal the October 9, 2020 and November 6, 2020 orders of the motion judge.

The Divisional Court granted the motions for leave to appeal and fixed costs of the motions at $10,000, payable at the discretion of the panel hearing the appeal.

The appellant appealed an order declaring a 2015 settlement agreement to be a binding separation agreement.

The appellant argued for the first time on appeal that a provision requiring expert review of the agreement's impact on their disabled child's ODSP eligibility created an implied right to terminate the agreement, and that the court should have exercised its discretion not to enforce it.

The Court of Appeal dismissed the appeal, declining to entertain novel arguments not raised before the motion judge and finding no basis to interfere with the enforcement of the agreement.

Following the release of the appeal judgment, the parties requested on consent to amend the partial indemnity costs of the applications below.

The Court of Appeal allowed the amendment, reducing the costs awarded to the appellants for the proceedings below from $93,000 to $55,000, inclusive of disbursements and taxes.

This is an appeal concerning an insurance claim for recoverable depreciation following a fire that destroyed a commercial building.

The insured, Champion, and insurer, Intact, had a settlement agreement with a 24-month replacement deadline and an automatic forfeiture clause for recoverable depreciation if not met.

A subsequent agreement conditionally waived this deadline, contingent on Champion closing a specific property purchase.

Champion failed to close that purchase and sought to substitute another property.

The motion judge found Intact had waived Champion's failure to close and granted summary judgment.

The Court of Appeal reversed, holding that forfeiture was automatic and Intact was not required to give notice.

The Court found Intact did not waive Champion's default and dismissed Champion's cross-appeal for relief from forfeiture or damages, as Champion had not completed replacement.

This appeal concerned a property dispute between neighbours over a two-foot wide strip of land.

The application judge had declared a prescriptive easement over a driveway portion and ownership by adverse possession over a backyard portion in favour of the respondents (original applicants).

The Court of Appeal found that the application judge made palpable and overriding errors.

Specifically, the court determined that the alleged prescriptive easement over the driveway was not "reasonably necessary" for the better enjoyment of the dominant tenement, but rather a personal convenience.

For the adverse possession claim, the court found the application judge misapprehended evidence regarding the true owner's exclusion from the backyard portion.

The appeal was allowed, setting aside the lower court's judgment and declaring the appellants' title unencumbered.

A teenage plaintiff was catastrophically injured when she deliberately jumped from a moving school bus on the last day of Grade 8 as part of an informal tradition among graduating students.

The bus operator had received prior reports of students jumping from buses but failed to report these incidents to the school as required by its own handbook.

A jury found the defendant 75 per cent liable and the plaintiff 25 per cent contributorily negligent, awarding substantial damages.

The defendant appealed on grounds of improper jury charge regarding causation and contributory negligence, erroneous removal of the mitigation issue from the jury, and failure to deduct statutory accident benefits.

The Court of Appeal upheld the jury verdict on causation and contributory negligence, found the trial judge erred in removing mitigation from the jury but determined no miscarriage of justice resulted, and remitted the statutory accident benefits deduction issue to the Superior Court for determination.

Appeal from a motion judge's decision ordering release of a cryopreserved in vitro embryo to the respondent ex-wife for her reproductive use.

The motion judge applied contract and property law principles to conclude the embryo should be released based on the parties' prior contractual agreement.

The Court of Appeal allowed the appeal, holding that the Assisted Human Reproduction Act and its regulations establish a consent-based model, not a contract-based model.

The parties remain "donors" under the regulations despite divorce, and the appellant retained the right to withdraw his consent under section 14(3) of the Consent Regulations.

The court found that consent cannot be frozen in time and that the statutory protections cannot be contracted away.

Following the dismissal of two proposed class action certification motions and a Rule 21 motion regarding the unauthorized sale of hospital patient contact information to RESP sales representatives, the successful defendants sought costs totaling over $690,000.

The Law Foundation of Ontario, which had indemnified the plaintiffs, argued that no costs should be awarded due to the novelty of the legal issues and the significant public interest in the protection of health privacy.

The court agreed, finding that the case raised novel questions about commercial liability for purloined patient information and engaged important public policy issues.

Applying section 31 of the Class Proceedings Act, 1992, the court exercised its discretion to make no order as to costs.