Bryan Finlay

The respondent obtained a Norwich order for pre-action discovery against the appellants to investigate alleged fraudulent conveyances and misrepresentations following a failed corporate acquisition.

The appellants appealed the order.

The Court of Appeal allowed the appeal and set aside the Norwich order, finding that the motion judge erred in principle by failing to consider whether the pre-action discovery was necessary.

The Court held that the respondent already possessed sufficient information to formulate a pleading and that the extraordinary equitable remedy of a Norwich order was not required.

The City of Toronto appealed a decision of the Ontario Municipal Board that permitted the respondent to convert a 20-storey affordable rental apartment building into a condominium.

The Divisional Court found that the Board applied the wrong legal test by merely 'having regard to' the Provincial Policy Statement 2005 instead of ensuring its decision was 'consistent with' it, as required by the Planning Act.

Furthermore, the Board failed to properly consider the specific mandatory criteria in the City's Official Plan regarding condominium conversions and the health of the rental housing market.

The appeal was allowed, the Board's decision was set aside, and the matter was remitted for a new hearing.

Costs endorsement following an appeal and cross-appeal.

The court awarded costs of the appeal and cross-appeal to the respondent (appellant-by-cross-appeal) on a partial indemnity basis, fixed at $27,500 inclusive of disbursements and GST.

The plaintiffs brought an action including a claim for oppression under the Canada Business Corporations Act (CBCA) alongside eight other causes of action.

The defendant obtained an order for security for costs from a master, which was upheld by a Superior Court judge.

The plaintiffs sought leave to appeal to the Court of Appeal under s. 249(2) of the CBCA, arguing the CBCA governed the appeal route.

The defendant moved to quash the application, arguing the proper route was to the Divisional Court under the Rules of Civil Procedure.

The Court of Appeal granted the motion to quash, finding that the core of the action was not an oppression claim and the plaintiffs had already initiated the appeal process under the civil rules.

The appellants, commercial fishers, challenged a communal fishing licence issued under a pilot sales program that granted members of three aboriginal bands the exclusive right to fish for salmon for 24 hours.

They argued the licence discriminated against them on the basis of race, violating their equality rights under s. 15(1) of the Charter.

The Supreme Court of Canada dismissed the appeal, holding that the program was protected by s. 15(2) of the Charter because it had an ameliorative purpose and targeted a disadvantaged group.

The Court established that if a program meets the criteria of s. 15(2), it does not violate the s. 15 equality guarantee.

The appellant appealed a decision granting declaratory relief to the respondent regarding an easement and an undertaking to grant a further access easement.

The appellant argued the easements were conditional on the respondent building a synagogue on its retained lands, which it later decided to develop for residential purposes.

The Court of Appeal dismissed the appeal, finding no language in the agreements or undertaking restricting the use of the easements to a synagogue, and no evidence that the change in use would increase the burden on the servient tenement.

The respondent's cross-appeal to stay the discharge of a Certificate of Pending Litigation until the easement was registered was allowed.

Mylex Ltd. appealed a trial judgment finding it liable in contract and tort for failing to meet delivery dates and providing poor quality ready-to-assemble furniture to Magnussen Furniture Inc. Magnussen cross-appealed the damages and costs awards.

The Court of Appeal found that while the trial judge erred in finding an 'overall contract' existed, this did not affect the ultimate liability finding based on breached purchase orders and negligence.

The Court upheld the trial judge's assessment of damages, which limited lost profits to a two-year period due to contingencies, and affirmed the discretionary costs award.

Both the appeal and cross-appeal were dismissed.

The applicant, a former officer of Nortel, sought judicial review to prohibit the Ontario Securities Commission from proceeding with a hearing against him.

He argued that the Commission's prior settlement with Nortel, which included admissions of misconduct by its managers, created a reasonable apprehension of bias against him.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative proceedings before the Commission had an opportunity to consider the matter and hear evidence regarding the applicant's actual role.

The appellant commercial tenant appealed an order granting relief from forfeiture on strict terms.

The tenant argued that the landlord's notice of default did not comply with s. 19(2) of the Commercial Tenancies Act and that the terms of the relief, which required extensive repairs and financial disclosure, were too strict.

The Court of Appeal dismissed the appeal, finding the notice of default sufficient and the terms of the discretionary relief appropriate and within the scope of the lease.

The appellant wife appealed a trial judgment interpreting the spousal support provisions of a marriage contract.

The contract required spousal support to be varied annually based on the greater of the proportional change in the husband's employment income or his total income from all sources.

The trial judge interpreted this to mean the greater proportional change, whether positive or negative, which could result in the wife receiving no support if the husband ceased employment.

The Court of Appeal allowed the appeal in part, holding that the variation provision must be interpreted in the context of the entire contract and the parties' intentions, meaning the variation should provide the wife with the greater amount of support.

The appeal regarding the minimum support provision was dismissed.

The appellant bank appealed a decision dismissing its motion to reappoint a trustee in bankruptcy and annulling a bankruptcy order, as well as the substantial indemnity costs awarded against it.

The Court of Appeal found no error in the trial judge's conclusion that there were no unrealized or undistributed assets under s. 41(11) of the Bankruptcy and Insolvency Act, noting the bank failed to adduce evidence that certain appraisals would have altered property valuations.

The Court also upheld the substantial indemnity costs orders, finding the trial judge acted within his discretion.

The appeal was dismissed with costs fixed at $15,000.

The appellants appealed a trial judgment which found that although the respondent lawyers were negligent, their negligence caused no actual loss to the appellants.

The appellants argued the trial judge ignored evidence that settlement funds were a loan from their mother.

The Court of Appeal found no palpable and overriding error in the trial judge's conclusion that there was no credible evidence of a loan, and that the appellants would have proceeded with the settlement regardless of the lawyers' negligence.

The appeal was dismissed.

A former student of the Institute of Chartered Accountants of Ontario sought judicial review of an Appeal Committee decision that overturned a publication ban on his name following a finding of professional misconduct.

The student had misappropriated $20,000 from a client.

The Discipline Committee had ordered a publication ban to aid his rehabilitation, but the Appeal Committee found this was an error in principle, as the conduct involved moral turpitude requiring general deterrence.

The Divisional Court applied the reasonableness standard of review and dismissed the application, upholding the Appeal Committee's decision to publish the student's name.

The applicant, a child with severe autism, sought judicial review of a Special Education Tribunal decision affirming his placement in a Primary Autism Pilot Project rather than an Intensive Behavioural Intervention (IBI) program.

The applicant argued the Tribunal erred in finding the requested IBI program was medical treatment rather than education, and in failing to apply the Charter and Human Rights Code.

The Divisional Court dismissed the application, finding the Tribunal's decision was reasonable and supported by the evidence that the pilot project was appropriate for the applicant's needs.

The appellant appealed a decision refusing to intervene in his removal as a Trustee of a pension fund pending investigations of alleged misconduct.

The Court of Appeal dismissed the appeal, agreeing with the application judge that there was no evidence the remaining trustees were likely to act contrary to the best interests of the plan members or that the appellant's removal would prejudice the members.

The court confirmed that the evidence did not meet the threshold of demonstrating a likelihood of abuse of discretion.

The applicants sought costs of $120,000 on a partial indemnity basis following a successful judicial review application.

The respondents argued that $30,000 was appropriate.

Applying the overriding principle of reasonableness from Boucher, the Divisional Court considered factors including the length of the hearing, the complexity of the issues, the voluminous record, and duplication of effort by applicants' counsel.

The court fixed costs at $60,000.

The applicants sought judicial review of the government's alleged failure to allocate adequate resources to fund treatment for autistic children, raising both administrative and constitutional arguments under ss. 7 and 15 of the Charter.

The Divisional Court declined to hear the constitutional arguments on a piecemeal basis, noting that a fuller record was being developed in related litigation (Wynberg and Deskin).

The court adjourned the constitutional issues pending the outcome of those cases and proceeded to hear only the administrative law issues.

The moving party sought to set aside an order of a single judge refusing leave to appeal a substantial costs award made by the Ontario Municipal Board.

The moving party argued that the costs award penalized them for exercising their right to a hearing de novo.

The Divisional Court dismissed the motion, finding that the single judge did not decline jurisdiction or apply a wrong principle in refusing leave to appeal, but rather considered the argument on its merits and rejected it.

The appellant, executor of the estate of John F. McLennan, appealed a decision ordering the discharge of a collateral mortgage and the payment of approximately $5.7 million in property sale proceeds to the estate of John K. McLennan.

The appellant argued that a 1996 assignment agreement transferred both the collateral mortgage and the deceased's personal guarantee to the father's estate.

The Court of Appeal upheld the lower courts' findings that the assignment agreement only transferred the collateral mortgage, which was worthless without the underlying debt and personal guarantee.

The appeal was dismissed.

The respondents sought leave under s. 246 of the Business Corporations Act to commence a derivative action.

The appellants, who were the intended defendants in the proposed action, moved to intervene in the leave application.

The motions judge dismissed the motion to intervene.

The Court of Appeal dismissed the appeal, holding that s. 246 permits the proceeding to be brought by application rather than motion, and that the motions judge did not err in exercising his discretion to deny intervention, as the intended defendants' rights would be fully protected once the action was commenced.