W. Danial Newton

The plaintiff, Finn Way General Contractors Inc., brought a motion seeking leave to admit a late-served expert report concerning construction delays and costs.

The defendant, Lakehead University, opposed the motion, arguing the report was served late and that expert opinion evidence was unnecessary.

The court found a reasonable explanation for the late service and no prejudice to the defendant.

However, the court ultimately dismissed the motion, ruling that the expert report was not necessary to assist the trier of fact, as its observations were conclusions lacking discernible analysis and usurped the role of the trial judge.

The appellant appealed a Licence Appeal Tribunal (LAT) decision dismissing his claim for a catastrophic impairment designation following a motor vehicle accident.

The appellant argued the LAT erred in law by failing to properly assess his mental and pain disorders and by ignoring key psychiatric evidence.

The LAT had subsequently issued a reconsideration decision that supplemented its original reasons and addressed these alleged errors, concluding that even if it had erred, the result would not change.

The Divisional Court dismissed the appeal, holding that the LAT acted within its jurisdiction under its reconsideration rules to review the evidence in light of alleged legal errors and confirm its original decision.

The appellant appealed a Licence Appeal Tribunal (LAT) decision that time-barred her application for a catastrophic impairment designation.

The LAT found the two-year limitation period expired because the appellant received the denial letter on the day it was written.

The Divisional Court allowed the appeal, finding the LAT erred in law by making a material finding of fact without evidence and by reversing the onus of proof onto the appellant to show when the letter was received.

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

The mother brought a motion to change a 2016 order, seeking sole decision-making, variation of child support, payment of extraordinary expenses, and adjustment of the expense allocation ratio.

The court denied the request for sole decision-making and international travel without the father's consent, finding no basis for such changes.

However, the court granted the variation of child support, accepting the mother's calculation of arrears and increasing ongoing support based on the father's current income.

The father was ordered to pay past extraordinary expenses, and the future pro rata sharing of extraordinary expenses was adjusted to 70% for the father and 30% for the mother, with income imputed to the mother for this calculation.

A Support Deduction Order was also granted for collection through the Family Responsibility Office.

This endorsement concerns the costs award following a judgment in favour of Finn Way General Contractor Inc. for $134,606.

Finn Way sought $85,000 in costs, while Superior Masonry (Thunder Bay) Ltd. proposed $25,000.

The court, applying Rule 57.01 of the Rules of Civil Procedure, fixed costs at $25,000 plus HST and disbursements, disallowing travel expenses for out-of-town counsel as no special expertise was required.

The moving party sought leave to appeal a 2019 order.

The Divisional Court dismissed the motion for leave to appeal.

As the responding party did not file materials and the Public Guardian and Trustee did not seek costs, no costs were ordered.

The moving parties brought a motion for leave to appeal the order of Sheard J. dated January 10, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs fixed at $7,500.

The moving parties sought leave to appeal an order of McEwen J. dated January 5, 2023.

The Divisional Court dismissed the motion for leave to appeal.

The court declined to award costs to the successful responding parties because they failed to file a Costs Outline.

The City of Thunder Bay sought costs on a full indemnity basis after successfully obtaining an order for an arbitrator's appointment due to the respondent's refusal to participate in arbitration.

The court, having previously ordered full indemnity costs, reviewed the City's submissions.

Despite the respondent's failure to file submissions, the court found the application was made unnecessarily complex by the respondent's irrelevant assertions.

Applying the principles from Boucher et al. v. Public Accountants Council for the Province of Ontario, the court fixed costs at a reduced amount of $17,000 plus HST and disbursements, finding it fair and reasonable given the circumstances and the respondent's conduct.

The applicant school board applied for judicial review of a labour arbitration award that upheld two grievances filed by the union on behalf of an employee with mental health disabilities.

The arbitrator had found that the employee was entitled to a sick leave refresh and that his return to work plan should have been accommodated through remote work.

Applying the Vavilov reasonableness standard, the Divisional Court found that the arbitrator's interpretations of the collective agreement and conclusions regarding medical evidence were internally coherent, justified, and reasonable.

The application for judicial review was dismissed.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision finding that it lacked just cause to dismiss a Black employee and that the dismissal was tainted by anti-Black racism.

The Divisional Court applied the reasonableness standard of review, deferring to the Board's factual findings and credibility assessments.

The Court upheld the Board's reliance on expert evidence regarding implicit bias and circumstantial evidence to conclude that race was a factor in the termination.

The application for judicial review was dismissed.

This endorsement addresses a procedural breach in a motion to change spousal support.

The respondent improperly filed an affidavit in a related Family Responsibility Office enforcement proceeding, which included a confidential transcript of a case/settlement conference.

The court found this violated Rule 17(23) of the Family Law Rules and the Court Transcript Standards and Procedures Manual.

The judge ordered the immediate removal and destruction of the affidavit and transcript, prohibited the respondent from relying upon or disseminating any confidential statements from the conference, and mandated the destruction of all copies.

A follow-up appearance was scheduled to ensure compliance and explain the error.

The Royal Bank of Canada (RBC) brought four motions for summary judgment to recover approximately $632,000 owing on various mortgages, charges, lines of credit, and a credit card, and sought writs of possession.

The defendant, Albert Peter James Francoeur, advanced arguments characteristic of an Organized Pseudolegal Commercial Argument (OPCA) litigant, claiming to appear as "CEO" of "Freedom Trust RN 623 018 037 CA" and asserting that legal title had been transferred to the Department of Finance Canada.

The court found the defendant's arguments to be without merit and consistent with OPCA tactics as described in Meads v. Meads.

The motions for summary judgment were granted, the defendant's counterclaims were dismissed, and costs were awarded to RBC.

The Ontario College of Pharmacists appealed a penalty decision of its Discipline Committee regarding a pharmacist who admitted to professional misconduct for submitting false billings to the Ontario Drug Benefit Plan.

The College argued the Panel erred by not imposing standard ownership restrictions on the pharmacist.

The Divisional Court dismissed the appeal, finding that the Panel's decision was owed great deference, did not misapprehend the evidence, and reasonably balanced the principles of protection of the public, proportionality, and rehabilitation without imposing the requested restrictions.

The City of Thunder Bay brought an application seeking to compel a former lessee, Dawn MacKay, to participate in arbitration to determine compensation for leasehold improvements upon the expiry of her lease.

Ms. MacKay had refused to appoint an arbitrator, disputing the lease terms, claiming land ownership, and alleging unfair valuation.

The court dismissed Ms. MacKay's arguments as unmeritorious, finding she had acknowledged the lease and that her ownership claims were irrelevant to the arbitration process.

The court ordered Ms. MacKay to appoint her arbitrator within 30 days, failing which the City could apply for the court to appoint one on her behalf.

The City was awarded full indemnity costs due to Ms. MacKay's protracted refusal to participate.

The appellant appealed a decision of the Health Professions Appeal and Review Board confirming the refusal of his application for registration as a Traditional Chinese Medicine Practitioner and Acupuncturist.

The appellant had failed the required prior learning assessment process (PLAR) case study assessment twice.

On appeal, he argued the Board erred in denying his request for an adjournment and in finding he did not meet the registration requirements.

The Divisional Court dismissed the appeal, finding no error in the Board's discretionary decision to deny the adjournment or its reliance on the PLAR competency assessments.

The applicant employer sought judicial review of a preliminary decision by the Ontario Labour Relations Board, which found that the employer's labour relations were provincially regulated and allowed the union's certification applications to proceed.

The Divisional Court dismissed the application for judicial review on the basis of prematurity.

The Court held that absent exceptional circumstances, which were not present here, administrative proceedings should not be fragmented by reviewing preliminary constitutional or jurisdictional issues before a final decision on the merits.

The appellant requested an adjournment of the appeal.

The Divisional Court granted the adjournment to an in-person hearing on March 1, 2023, making the date peremptory on the appellant, with or without counsel.

Costs of the day were reserved to the panel hearing the appeal.

The applicants brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $5,000.

The moving party sought leave to appeal the order of Kimmel J. dated October 19, 2021.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were awarded to the responding party in the fixed amount of $5,000.