Cynthia Barbara Kuehl

A motion for leave to intervene in an appeal was dismissed.

The proposed intervener, a non-profit organization with expertise in architectural conservation, sought to participate in an appeal concerning a municipal decision.

The court found that the proposed intervener failed to clearly articulate how its submissions would differ from those of the appellant, and that granting leave at such a late stage in the proceedings would cause unfairness to the respondents who had already filed their materials.

The applicants, owners of the Glen Abbey Golf Course, brought an application to quash five municipal by-laws enacted by the respondent Town.

The by-laws aimed to preserve the property's use as a golf course following its designation as a cultural heritage property.

The Superior Court of Justice allowed the application and quashed the by-laws, finding them ultra vires the Town's authority under the Municipal Act, as they improperly required the provision of services related to recreation and culture.

The court also found the by-laws were enacted in bad faith to thwart the applicants' redevelopment plans and were void for vagueness.

The Town of Oakville designated the Glen Abbey Golf Course as a heritage site under the Ontario Heritage Act (OHA).

Clublink, the owner, sought to demolish and redevelop the property, applying under s. 34(1) of the OHA.

The Town refused to process this application, arguing that the golf course features were not "buildings or structures" within the meaning of s. 34, and that Clublink should instead apply under s. 33, which provides for a non-binding appeal route.

The court was asked to determine the correct procedural route for Clublink's proposed changes.

The court found that the Glen Abbey Golf Course, including its engineered features such as tees, greens, sand traps, and irrigation systems, constitutes "structures" for the purposes of s. 34 of the OHA.

Consequently, Clublink has the right to make an application to the Town under s. 34(1), and the Town was ordered to process Clublink’s application.

Clublink sought leave to admit a supplementary affidavit after cross-examinations concluded, arguing it supported their claim of bad faith in Oakville's by-law enactment.

Oakville moved to strike the affidavit, arguing it was late-filed and irrelevant.

The court applied the four-part test for admitting late-filed evidence under Rule 39.02(2), finding the evidence either irrelevant or available prior to cross-examinations.

Clublink's motion for leave was dismissed, and Oakville's motion to strike was granted, rendering the supplementary affidavit inadmissible.

The applicant, the Town of Oakville, brought a motion to compel the respondents, Clublink Corporation ULC and Clublink Holdings Limited, to answer certain questions and produce documents refused during cross-examinations of their expert witnesses.

The motion concerned the interpretation of section 34 of the Ontario Heritage Act in the context of the Glen Abbey golf course redevelopment.

The court dismissed most of the applicant's requests, finding the documents irrelevant to the narrow issues or the expert's independence.

However, it ordered the production of any separate written retainer agreement for a heritage impact assessment, if such an agreement existed, deeming it marginally relevant to the expert's independence.

The court also addressed and admonished counsel for an improper ex parte communication made after the motion hearing concluded.

In a negligence appeal concerning injuries suffered after minors stole an unlocked vehicle from a commercial garage, the Court addressed whether the garage owner owed a duty of care to the injured passenger.

The majority held that while theft risk was foreseeable, the record did not establish reasonable foreseeability of personal injury from unsafe operation of the stolen vehicle in the specific circumstances.

Applying Anns/Cooper, the majority found the plaintiff failed to establish a prima facie duty of care and dismissed the claim against the garage owner.

The dissent would have upheld the existing duty category for foreseeable physical injury and maintained liability findings.

On appeal from a Divisional Court decision, the Court of Appeal considered whether the Ontario Municipal Board (OMB) had jurisdiction to impose a 25 percent cap on the alternative parkland dedication requirement under section 42 of the Planning Act.

The Town of Richmond Hill had adopted an Official Plan policy allowing for parkland dedication at a rate of one hectare per 300 dwelling units.

Developers challenged this policy, and the OMB imposed a 25 percent cap on the amount of land required to be conveyed.

The Divisional Court set aside the cap, finding the OMB lacked authority to impose it.

The Court of Appeal upheld this decision, holding that the legislature has given municipalities exclusive authority to determine the rate under section 42(3), subject only to the requirement that an Official Plan contain specific policies dealing with parkland provision and the use of the alternative requirement.

The OMB's role is limited to reviewing whether such policies are appropriate and accord with provincial policies, not to set or cap the rate itself.

The appellant tenant appealed an order quashing its appeal from an arbitration award determining fair market rental under a 99-year ground lease.

The central issue was whether the parties' appeal rights were limited to questions of law with leave, as provided in the Arbitration Act, 1991, or whether broader appeal rights existed under the original Lease provisions referencing the Arbitrations Act, R.S.O. 1970.

The Court of Appeal upheld the motion judge's decision, finding that the Arbitration Agreement was a stand-alone agreement governing appeal rights and that the parties' appeal rights were limited to questions of law with leave under the 1991 Act.

Hercules Moulded Products Inc. appealed a summary judgment dismissing its claims against Stewart Title Guaranty Company for indemnification under a Commercial Lender Endorsement title insurance policy.

The claims arose from problems with two adjacent properties in Windsor, Ontario that Hercules held as security for a mortgage.

The issues included: (1) the cost of filling an excavation ordered by the City of Windsor, added to the tax bill; (2) development agreements registered on title; and (3) an alleged encroachment.

The Court of Appeal affirmed the dismissal on two primary grounds: first, the excavation matter was excluded from coverage under the policy's non-disclosure provision as it was known to Hercules but not disclosed to Stewart before the policy date; and second, the development agreements and encroachment caused no actual loss or damage as required by the policy.

The appellants challenged a motion judge's discretionary decision to extend the limitation period under section 38(3) of the Trustee Act and permit the respondents to add the appellants as named defendants in a medical malpractice action.

The Court of Appeal found no basis to interfere with the motion judge's decision, which was based on a finding of special circumstances.

Although there was a lengthy unexplained delay, the motion judge found it was outweighed by other factors, and there was no actual prejudice.

The appeal was dismissed.

The plaintiff, Hercules Moulded Products Inc., and the defendant, Stewart Title Guaranty Company, brought cross-motions for summary judgment regarding coverage under a commercial title insurance policy.

Hercules sought to recover losses related to a municipal by-law violation (dirty yard), development agreements, and an alleged building encroachment on two properties.

Stewart Title sought summary dismissal, arguing no coverage or applicable exclusions.

The court found no coverage for the by-law violation due to the work order being issued post-policy and the plaintiff's failure to disclose known issues.

It also found no actual loss demonstrated from the development agreements or the alleged encroachment, and that exclusions applied due to the plaintiff's knowledge and failure to provide timely notice.

The plaintiff's motion was dismissed, and Stewart Title's motion for summary dismissal was granted.

The appellant appealed a summary judgment dismissing his medical malpractice action against his former family doctor.

The appellant alleged the doctor negligently removed surgical staples from his knee, causing permanent injury.

The Court of Appeal upheld the motion judge's findings that the action was statute-barred, as the appellant knew of the material facts giving rise to the claim more than two years before commencing the action.

The Court also agreed that the claim required expert medical evidence, as it was not one of the clearest of cases where such evidence could be dispensed with.

The appeal was dismissed.

The appellant doctor appealed a decision dismissing his summary judgment motion to dismiss the respondent's medical malpractice action as statute-barred.

The respondent suffered severe complications following breast reduction surgery, and the appellant continued to perform ameliorative surgeries for over a year.

The Court of Appeal upheld the motion judge's finding that under s. 5(1)(a)(iv) of the Limitations Act, 2002, the respondent did not know that a legal proceeding would be an appropriate means to seek a remedy until the ameliorative treatments concluded.

The appeal was dismissed.

The plaintiff sought to add an orthopaedic surgeon as a co-defendant to a medical malpractice action nearly ten years after the surgery, alleging that the surgeon fraudulently concealed an intraoperative event.

The Master granted the motion to add the surgeon with leave to plead a limitation period defence.

On appeal, the Superior Court of Justice set aside the Master's order, finding that the plaintiff and his counsel knew or ought to have known of the potential claim against the surgeon shortly after the surgery.

The court held that there was no fraudulent concealment and that the claim against the surgeon was statute-barred.

The plaintiff brought a motion for leave to amend the statement of claim to add a surgeon as a defendant in a medical negligence action after the action had already been set down for trial.

The proposed defendant opposed the motion on the basis that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that there were genuine issues of fact and credibility regarding discoverability, including allegations that the proposed defendant failed to disclose an intra‑operative complication and may have misled the plaintiff’s counsel.

Applying the approach in Wong v. Adler, the court determined that such factual disputes should not be resolved on a motion to amend.

The surgeon was therefore added as a defendant with leave to plead a limitation defence.

The plaintiff underwent foot surgery by the defendant orthopedic surgeon, who had diagnosed a ganglion cyst.

During surgery, the defendant discovered a nerve tumour (schwannoma) and proceeded to excise it, causing permanent nerve damage to the plaintiff's foot.

The plaintiff sued for negligence, lack of informed consent, and battery.

The court dismissed the negligence claims regarding assessment and diagnosis but found the defendant liable for lack of informed consent and battery, as the material risks of nerve damage were not disclosed and the plaintiff did not consent to the peripheral nerve surgery.

The court awarded $75,112 in damages to the plaintiff and $5,000 to his wife under the Family Law Act.

Following the release of the court's decision on the appeal, the parties reached an agreement regarding costs.

The court ordered costs of the appeal to the respondent in the agreed amount of $21,000, inclusive of fees, disbursements, and all applicable taxes.

The appellant appealed a trial judge's finding of liability for a fire that destroyed his hotel and damaged adjacent buildings owned by the respondents.

The trial judge had accepted the respondents' expert evidence that the fire was caused by a defective boiler and inadequate clearance of its exhaust ventilation duct.

On appeal, the appellant argued the trial judge provided insufficient reasons and failed to articulate the standard of care.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons adequately explained his resolution of the conflicting expert evidence and his conclusion that the appellant's failure to maintain the boiler breached the standard of care and caused the fire.

The appellants, a nurse and a hospital, appealed a jury verdict finding them liable for a brain injury suffered by an infant during birth.

The jury found the nurse 75% liable and the hospital 25% liable, while dismissing claims against the delivering physician.

The appellants argued the verdict was unreasonable due to insufficient evidence of causation and lack of expert evidence on the hospital's standard of care, and that the trial judge erred in the jury charge.

The Court of Appeal dismissed the appeal, holding that the jury was entitled to determine the hospital's standard of care without expert evidence, that there was sufficient evidence to support the jury's finding of causation based on a robust and pragmatic application of the 'but for' test, and that the jury charge contained no reversible errors.

The appellant, a non-party to the proposed action, appealed an order directing it to produce certain documents to the respondent.

However, the documents were produced before the appeal was launched, rendering the appeal moot.

The Court of Appeal declined to exercise its discretion to hear the moot appeal, noting that the issue was not one that would evade appellate review in the normal course and that the order under appeal was discretionary based on specific facts.

The appeal was dismissed as moot.