Colin A. Brown

The appellants challenged the dismissal of an application concerning the location and scope of a right-of-way serving their land-locked lot, the effect of a later agreement, alleged interference caused by a fence, and an oppression claim against a not-for-profit corporation connected to the development.

The Court of Appeal held that the application judge was entitled to find that the governing right-of-way was created by a 1961 shareholder resolution, that the 1974 agreement did not create a different route, and that the fence did not substantially interfere with the granted easement.

The court also rejected a new regulatory theory concerning conservation authority approval and found no evidentiary basis for the oppression claim.

Applying deferential appellate review, the court found no palpable and overriding error or extricable legal error and dismissed the appeal.

On a motion to compel responses to discovery undertakings in a simplified civil action with a counterclaim under the Business Corporations Act, the moving party asserted three undertakings remained outstanding.

The court found that production of specific Visa statements and a witness list with contact information had been satisfactorily provided, but held that the will-say materials were insufficient because they did not adequately summarize anticipated evidence for expected trial witnesses.

Applying disclosure principles referenced in the jurisprudence, the court required meaningful witness-evidence summaries rather than generic topic statements.

The motion was granted in part with a direction to provide sufficient will-say statements within 30 days.

Costs of $1,000 all-inclusive were awarded to the moving party.

The applicants, Paul and Roberta Bennett, sought a declaration of a right-of-way over property owned by the respondents, Kimberly Chadwick and Cressview Lakes Corporation, and an order requiring removal of a fence allegedly impeding their access.

The dispute centered on the location of the right-of-way and whether the applicants’ access was impeded.

The court found that the original right-of-way was over Lot 45 (not Lot 46), as established by a 1961 resolution and a 1974 agreement, and that the fence did not impede access.

The application was dismissed.

Vidhya Ramdas appealed two permanent injunction orders issued against her for undertaking unauthorized work on her property within a regulated wetland.

She argued the application judge erred by denying an adjournment and by not requiring the matter to proceed to trial due to contested facts.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the adjournment refusal given the overwhelming evidence that Ramdas proceeded with excavations without the requisite permits.

The court also provided observations on the duties of judges and counsel when dealing with self-represented litigants, noting that opposing counsel were remiss in not fully informing the application judge about the interim injunction and served materials.

The applicant conservation authority sought an interim injunction to stop the respondents from excavating peat and depositing fill on their property, which is located within a provincially significant wetland.

The respondents had been carrying out these activities without the required permits under the Conservation Authorities Act and Ontario Regulation 179/06.

The court found that the respondents were in flagrant breach of the regulation and that their activities were causing irreparable harm to the wetland.

The court granted the interim injunction, prohibiting the respondents from interfering with the wetland without prior written approval.

Following a successful motion for summary judgment where the plaintiffs were awarded $94,874.27, the plaintiffs sought costs.

The plaintiffs had made an offer to settle that triggered the costs consequences of Rule 49.10.

The court found the requested fees and hourly rates to be reasonable and proportionate.

Costs were fixed at $26,355.17 all inclusive, payable by the defendant.

The plaintiffs moved for summary judgment, arguing their "Exclusivity Agreement" with the defendant was a franchise agreement under the Arthur Wishart Act, requiring disclosure which was not provided.

The defendant contended it was not a franchise.

The court found the agreement constituted a franchise based on payment requirements, trademark association, and significant control exercised by the defendant.

Consequently, the plaintiffs were entitled to rescission due to non-disclosure and damages for loss of income and moving expenses.

Claims for misrepresentation and other business expenses were dismissed or required further proof at trial.

An appeal concerning whether a residential property held in joint tenancy by a mother, son, and daughter-in-law passed by right of survivorship to the daughter-in-law upon the mother's death, or whether it formed part of the mother's estate.

The daughter sought a declaration that the property should be distributed under the mother's will.

The Court of Appeal upheld the application judge's dismissal of the application, finding that the joint tenancy was not severed by a separation agreement between the son and daughter-in-law, that the mother had gifted the property to the son and daughter-in-law, and that the mother was not subject to undue influence.

The court also upheld the costs award against the daughter.

The applicant brought a motion for interim child and spousal support, and the respondent brought a cross-motion for access to their two young children.

The court imputed the respondent's income at $62,000 and found the applicant had established a prima facie case for spousal support entitlement due to the economic disadvantage of parenting.

The court ordered interim child and spousal support, and granted the respondent graduated access, starting with supervised visits and transitioning to unsupervised access, with strict conditions regarding the supervision of his older special needs child.

Following a successful application for judicial review where the court found a denial of procedural fairness by the Town, the applicant sought costs on a full indemnity basis for the application and several related motions.

The Divisional Court held it lacked jurisdiction to award costs for the related motions or to set aside a previous costs order.

However, the court awarded the applicant substantial indemnity costs of $44,329.66 for the judicial review application, citing the Town's conduct that unnecessarily lengthened the proceeding and the denial of procedural fairness.

The applicant sought judicial review of a development charges by-law passed by the respondent municipality, arguing that the municipality failed to provide adequate notice of public meetings, thereby denying procedural fairness.

The Divisional Court found that while the municipality failed to strictly comply with statutory notice requirements for the first meeting, procedural fairness was not denied.

However, the court held that the applicant was denied procedural fairness regarding the second meeting because the Mayor had explicitly promised further notice and an opportunity to be heard, which was not provided.

The court declined to quash the by-law but ordered the municipality to refund development charges paid by the applicant and other affected landowners during an 18-month transition period.

The parties separated in 2009 and have two children.

The mother, who converted to Judaism, had primary care of the children and unilaterally made religious and medical decisions, including circumcising the boys.

She repeatedly breached court orders regarding access and travel, and failed to ensure the children attended public school on time, preferring a private Jewish school.

The Office of the Children's Lawyer recommended a change in custody due to the mother's attempts to marginalize the father and her failure to meet the children's educational needs.

The court awarded sole custody to the father, finding the mother ungovernable and unable to foster the children's relationship with their father.

The mother was granted extensive access and ordered to pay child support based on imputed income, while the father was ordered to pay time-limited spousal support.

The appellant sued the respondents for damages arising from the alleged wrongful repudiation of an agreement of purchase and sale for a new home.

The respondents had originally agreed to purchase the home from a builder, but the builder's agreement prohibited assignment or sale without consent.

The appellant and her husband, an experienced real estate broker, knew of this prohibition but still entered into an agreement with the respondents to purchase the property.

The trial judge dismissed the action, finding the agreement was illegal as it was designed to defeat the builder's rights.

The Court of Appeal upheld the decision, concluding that the courts will not assist a plaintiff in recovering damages for the breach of an agreement intended to circumvent the known rights of an innocent third party.

The appellant appealed a judgment granting declaratory relief regarding his status as a director, shareholder, and administrator of a corporation.

The Court of Appeal dismissed the appeal, finding that the appellant had validly resigned as a director and could not unilaterally withdraw his resignation.

The court also held that the sole remaining non-resident director did not lose his status under the Business Corporations Act and had standing to call a shareholders meeting.

Furthermore, the issuance of shares to the appellant from the corporate treasury violated an existing cease-trading order under the Securities Act and was therefore invalid.