Byrdena MacNeil

The court considered whether the removal of an underground storage tank by the plaintiff, Fleetway Fuels Inc., was a “voluntary removal” under Endorsement No. 10 of an insurance policy issued by Liberty Mutual Insurance Company.

The court found that the removal was voluntary, as it was undertaken as a result of a contractual obligation in a commercial lease, not due to compulsion by law or governmental order.

The exclusion in the policy therefore applied, and the insurer was not required to indemnify the plaintiff for environmental cleanup costs discovered during the removal.

This property dispute concerned whether the applicants had gained rights over parts of their neighbours’ land used for a shared driveway and a parking and lawn area.

The court rejected the claim for adverse possession of both the driveway strip and the parking and lawn area because the evidence did not show actual possession, an intention to exclude the true owner, or effective exclusion for the required period.

However, the court found that the applicants and their predecessors had openly, continuously, and without permission used the encroaching portion of the driveway since at least 1977, establishing a prescriptive easement for vehicular access.

The court declared the easement, ordered the respondents not to obstruct it, and required removal of items interfering with its use.

The applicant sought judicial review of a decision confirming the cancellation of his nomination approval under the Ontario Immigrant Nominee Program.

The nomination was cancelled because the applicant failed to apply for a work permit within the six-month validity period of his work permit support letter, citing COVID-19 travel restrictions in China and family responsibilities.

The Divisional Court dismissed the application, finding the internal reviewer's decision reasonable and concluding there was no breach of procedural fairness, no veiled credibility finding, and that adequate reasons were provided.

This addendum corrects a factual error in the reasons for decision released February 5, 2025, regarding the date on which shares were given to the parties.

The court clarifies that the shares were given at Christmas 1996, not Christmas 2019, as previously stated in paragraph 169.

The plaintiff, Damodar Arapakota, brought a motion to cure an administrative error by the court, to note the defendant, Haji Makki, in default, and for leave to bring a motion for default judgment.

The court found that the defendant was in default as of August 14, 2023, but due to an administrative error, the default was not recorded.

The court granted the motion to note the defendant in default but immediately set aside the noting in default, finding that the defendant had an arguable defence, the delay was not unreasonable, and there was no non-compensable prejudice to the plaintiff.

The matter was ordered to proceed on its merits.

The appellant, an operator of diagnostic imaging clinics, appealed a decision of the Health Services Appeal and Review Board upholding the Minister's requirement to reimburse over $1.1 million in facility fees.

The Divisional Court allowed the appeal, finding that the Board breached its duty of procedural fairness by classifying the Ministry's sole witness as a 'litigant's employee with expertise' without giving the appellant prior notice or an opportunity to make submissions and call reply evidence.

The matter was remitted to the Board for a new hearing.

The court dismissed Tar Heel Investments Inc.'s claims against H.L. Staebler Company Limited, Lisa Arseneau, and Debbie Sutton regarding the alleged wrongful sale and use of a transportation insurance book of business.

The court found that Arseneau was not merely an employee but entered into a quasi-partnership with PDI, retaining ownership of her book of business.

No binding agreement was reached regarding the TRIP book of business, and Arseneau was constructively dismissed when her employment terms were unilaterally changed.

The court held that neither fiduciary nor confidentiality duties survived the constructive dismissal, and there was no conversion, conspiracy, or breach of contract by the defendants.

The action was dismissed.

The court granted the defendants leave to amend their Amended Statement of Defence, finding that the proposed amendments—alleging an oral agreement regarding a book of business and constructive dismissal—would not cause non-compensable prejudice to the plaintiff.

The decision reviews the legal test for amendments under Rule 26.01 of the Rules of Civil Procedure, emphasizing that amendments should be allowed unless they cause injustice not compensable by costs or adjournment, are not tenable at law, or lack sufficient particulars.

The court found that the delay in seeking the amendments was explained and did not result in actual prejudice to the plaintiff, and that the amendments were based on facts already known to the parties.

The Ken Breau Corporation, a Dairy Queen franchisee, sought a declaration that DQC Canada Inc. breached its statutory obligations of fair dealing and good faith under section 3 of the Arthur Wishart (Franchise Disclosure) Act, 2000, and sought to restrain DQC from awarding a new restaurant to another franchisee within eight kilometres of its territory.

The court found that DQC had not breached its obligations, as the Franchise Agreement clearly defined the applicant’s territory and DQC’s actions were consistent with both the contract and commercial standards.

The application was dismissed.

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying certain statutory accident benefits.

The Divisional Court found that the LAT adjudicator denied the appellant procedural fairness by unilaterally separating her hearing from her mother's, drastically reducing the scheduled hearing time without adequate notice, and refusing to allow cross-examination of the respondent's occupational therapist whose report had been materially altered by an assessment company.

The appeal was allowed, and the matter was remitted for a new hearing before a different adjudicator.

The defendant, Wrestling Canada Lutte, appealed a motion judge's decision declining to strike a breach of contract claim brought by the plaintiffs.

The plaintiffs alleged the defendant breached a dispute resolution clause by failing to engage in dispute resolution before terminating their independent contractor agreement without cause.

The Divisional Court allowed the appeal, finding that a valid without-cause termination does not constitute a 'dispute' under the contract.

Because the contract was validly terminated and no dispute had been referred to arbitration prior to termination, the dispute resolution clause was not triggered.

The statement of claim was struck in its entirety.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The moving parties brought a motion for leave to appeal the decision of Sutherland J. dated July 24, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs in the amount of $4,520.56 to the responding party.

The moving parties brought a motion for leave to appeal an order dated August 9, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $3,000 to the responding party.

The court-appointed Receiver sought approval for the sale of a property owned by the Debtor, 253 Queen Street Inc., and an Administration Order.

The sale was supported by secured creditors Homedale-Eagle Corporation and Sky Mortgage Corporation but opposed by the Debtor and its equity holders.

The opposing parties argued the purchase price was too low, the environmental indemnity was not assumed by the purchaser, and their beneficial interest in the property was not recognized.

The court applied the Soundair principles for approving sales in receivership, finding the Receiver acted providently and fairly.

The court rejected the claims of beneficial ownership based on trust law and the Land Titles Act, affirming the priority of registered mortgages over unregistered beneficial interests.

The Receiver's motion for approval of the sale and the Administration Order was granted.

The defendant union moved to dismiss the plaintiff's action for lack of jurisdiction and abuse of process, arguing that the claims, including discrimination, wrongful dismissal, defamation, and breach of contract, fell under the exclusive jurisdiction of the Ontario Labour Relations Board (OLRB) or a labour arbitrator, and had already been adjudicated by the OLRB.

The plaintiff, a union member, alleged improper termination by his employer and the union's failure in its duty of fair representation, asserting that his claims involved human rights issues beyond the OLRB's jurisdiction.

The court dismissed the action, finding that the essential character of the dispute arose from the collective agreement and the union's duty of fair representation, which are exclusively within the OLRB's jurisdiction, and that the action constituted an abuse of process as it sought to relitigate issues already determined by the OLRB.

The plaintiffs brought a motion seeking various relief concerning the estate of the late Dean Joseph Costanza, including a suspensory order under the Succession Law Reform Act, a Mareva injunction, and an order to deposit life insurance proceeds into trust.

They argued that the $500,000 life insurance payout, designated to the minor defendant, should be deemed part of the deceased's net estate for dependant support purposes under s. 72(1)(f) of the Act.

The court dismissed these requests, finding that the life insurance proceeds, already paid out pursuant to a prior unappealed court order, were not subject to clawback under s. 72(1)(f) due to the application of s. 72(7) and because they were no longer "payable." The court further held that the plaintiffs' requests constituted an impermissible collateral attack on the prior order and an abuse of process.

The Mareva injunction was also denied as the plaintiffs failed to establish a strong prima facie case or a genuine risk of asset dissipation.

The plaintiff, CCPS Land Development Ltd., brought a motion for summary judgment, alternatively to strike the defendant's (Capital Sewer Services Inc.) statement of defence and counterclaim, or to compel discovery.

The action concerned damages for alleged breach of a commercial lease.

The court dismissed the summary judgment and striking pleadings requests, finding genuine issues requiring a trial, particularly regarding the condition of the premises, responsibility for repairs, the overholding period, and the relationship between the plaintiff and a subtenant (Uniflo).

The court did grant the request for a discovery timetable and ordered the defendant to pay $6,000 in costs to the plaintiff.

The applicant, a residents' association, sought judicial review of the respondent City's decision to grant a heritage permit to a property owner (the intervenor) for the construction of a new house in a designated heritage conservation district.

The applicant argued the proposed house was too large and violated the mandatory mass and height guidelines of the District Plan, and that it was denied procedural fairness because it was not invited to appear before City Council.

The Divisional Court dismissed the application, finding the City's interpretation of the District Plan was reasonable and that the applicant had been afforded extensive procedural fairness during the committee stages, exceeding the requirements of the statutory scheme.

The appellants appealed an order dismissing their motion to set aside a noting in default in a construction lien action.

The appellants had failed to deliver a statement of defence for over a year and offered no explanation for their delay.

The Divisional Court dismissed the appeal, finding the motion judge made no error in refusing to lift the default given the lack of evidence.

The court also noted the appellants improperly attempted to adduce fresh evidence without leave.