Danny Kastner

The appellant appealed an order granting the respondent leave to commence a derivative action on behalf of a corporation under s. 246 of the Business Corporations Act.

The motion judge had granted leave on a nunc pro tunc basis.

The Divisional Court held that the motion judge erred in applying the doctrine of nunc pro tunc to cure an expired limitation period, following the Supreme Court's decision in the CIBC Trilogy.

The court varied the order to state that derivative claims arising more than two years prior to the filing of the motion for leave are statute-barred, but allowed the grant of leave to stand for continuing breaches within the limitation period.

In a professional discipline motion, the member sought to quash a notice of hearing on the basis that the alleged misconduct occurred before registration.

The Panel held that the Discipline Committee has jurisdiction over pre-membership conduct where a broad and purposive reading of the governing statute, informed by the College's public protection mandate, supports that result.

The Panel rejected the submission that the registration regime exhaustively addresses pre-registration misconduct and held that the presumption against retrospectivity does not bar jurisdiction in this public protection context.

It adopted a suitability-based threshold, holding that jurisdiction extends to pre-membership conduct that calls into question the member's current suitability to practise.

The defendant sought costs after successfully opposing the plaintiff's motion to quash an appeal.

The plaintiff argued that no costs should be awarded because the motion raised a novel jurisdictional question and was brought in good faith.

The court rejected the plaintiff's arguments, finding that the motion was not sufficiently novel to justify departing from the usual rule that costs follow the event.

The court awarded costs to the defendant on a partial indemnity scale in the amount of $8,166.51.

The plaintiff moved to quash the defendant's appeal of an order granting the plaintiff leave, nunc pro tunc, to commence a derivative action.

The plaintiff argued the order was interlocutory and required leave to appeal.

The Divisional Court held that the motion judge's order was a final order because it disposed of the defendant's limitation period defence, thereby depriving the defendant of a substantive right that could have been determinative of the entire derivative action.

As a final order, leave to appeal was not required, and the motion to quash was dismissed.

The plaintiff sought substantial indemnity costs of $36,733.95 plus HST and disbursements following a successful motion, relying on offers to settle.

The responding defendant argued the costs were excessive and disproportionate, suggesting $8,000.

The court agreed the motion was complex and important, but found the plaintiff's claimed hours involved extensive duplication.

Emphasizing the overriding principles of proportionality and reasonableness, the court fixed costs at $15,000 plus HST and $2,000 for disbursements.

The plaintiff, a minority shareholder of a corporation, brought a motion to amend his statement of claim and for leave to commence a derivative action on behalf of the corporation against a real estate brokerage for breach of a joint venture agreement.

The brokerage opposed the motion, arguing the amendments constituted a new cause of action outside the limitation period and that the plaintiff did not meet the requirements for a derivative action.

The court granted the motion, finding that the brokerage had notice of the factual matrix underlying the claims within the limitation period, and that the plaintiff satisfied all statutory requirements to bring a derivative action in good faith.

An employee appealed a trial judgment dismissing his claim for unpaid bonuses following termination without cause.

The employment contract contained a limitation clause stating that bonuses did not accrue and were only earned and payable on the designated pay-out date.

The trial judge found the limitation clause unambiguous and enforceable.

The Court of Appeal upheld this decision, finding that the parties had clearly agreed on how and when bonuses would be declared, earned, accrued, and paid.

The court rejected arguments based on unconscionability and public policy, noting that the bonus provisions were freely negotiated.

The appeal was dismissed with costs awarded to the respondent.

The plaintiffs brought a motion seeking a declaration that the defendant was in civil contempt of a prior court order requiring him to cease representing himself as an officer of a community organization and to deliver the organization’s records and financial documentation.

Applying the three‑part test for civil contempt set out in Carey v. Laiken, the court held that the prior order was clear and unequivocal, the defendant had actual knowledge of the order, and he intentionally failed to comply with it.

Evidence demonstrated that the defendant continued to hold himself out as president or director and failed to produce the required records despite repeated demands and an undertaking to do so.

The court ordered the defendant to comply with the original order by a specified date and warned that failure to do so could result in the issuance of a warrant for his arrest.

The plaintiffs, having been wholly successful, were awarded costs.

The applicant, a school bus driver employed by the respondent First Nation, filed a human rights application alleging age discrimination.

The respondent requested deferral pending related federal proceedings, and the Tribunal raised the issue of whether the matter fell under federal or provincial jurisdiction.

The Tribunal declined to defer the application, noting the federal proceedings were on hold or conditional.

Applying the functional test, the Tribunal found that the respondent's provision of school bus services to provincial high schools was a provincial undertaking, not integral to any federal undertaking, and therefore fell under provincial jurisdiction.

The applicant filed a human rights application alleging discrimination on the basis of disability and sexual orientation.

The respondent and the intervenor union argued the application should be dismissed as an abuse of process because the applicant had previously signed a Memorandum of Agreement containing a full and final release.

The applicant argued the release should be set aside because he signed it under extreme duress and lacked the mental capacity to understand its consequences.

The Tribunal found that the applicant understood he was signing a settlement agreement that severed his employment, and that the pressure he faced did not amount to legal duress.

The application was dismissed as an abuse of process.

The applicant filed a human rights application against his employer and his union, alleging discrimination on the basis of disability and sexual orientation.

The union requested that the application against it be dismissed at a summary hearing for having no reasonable prospect of success.

The applicant alleged the union failed to file further grievances on his behalf and pressured him to sign a settlement agreement.

The Tribunal found that even if the applicant's allegations were true, there was no evidence linking the union's conduct to a protected ground.

The Tribunal also rejected the argument that the union was liable under the Renaud test, as there was no discriminatory rule and the union did not impede employer accommodation.

The application against the union was dismissed.

The applicant sought reconsideration of a decision dismissing her human rights application against the union and its president.

The original decision found that blog posts by the union president, which criticized the applicant using sexist stereotypes, did not constitute workplace harassment under the Human Rights Code because they were protected by freedom of expression and association in the context of union-management relations.

The applicant and the intervening Ontario Human Rights Commission argued the Tribunal made fundamental errors in balancing these competing rights and denied procedural fairness.

The Tribunal dismissed the request for reconsideration, finding no conflict with established jurisprudence, no denial of procedural fairness, and no error in its balancing of the competing rights.

The applicant filed applications alleging a breach of a 2009 settlement agreement by his former employer and union.

The applicant claimed he was tricked into signing the settlement and accepted it under economic duress.

The respondents argued the Tribunal lacked jurisdiction under section 45.9 of the Human Rights Code to consider these allegations as a breach of settlement.

The Tribunal agreed, finding that an allegation of duress is a claim that the contract does not represent a voluntary agreement, not an allegation that a party contravened the settlement.

The applications were dismissed for lack of jurisdiction.

The parties requested an adjournment on the first day of a scheduled two-day hearing because they had reached a settlement in principle, but finalizing it was delayed due to the hospitalization of the respondent's instructing client.

The Tribunal granted a one-day adjournment, ordering that if a settlement form was not filed by the end of the day, the hearing would proceed the following day with mediation-adjudication in the morning and testimony in the afternoon.

The applicant filed a human rights application alleging discrimination on the basis of disability and reprisal regarding her termination.

The respondents requested dismissal under section 45.1 of the Human Rights Code, arguing the matter was already dealt with in a grievance arbitration.

The arbitrator had previously found a breach of the Code and awarded general damages.

The Tribunal applied the principles from Figliola, finding that the substance of the application had been appropriately dealt with in the prior proceeding, and dismissed the application.

The applicant, a manager at a provincial jail, alleged that the respondent union president discriminated against and harassed her by posting sexist comments about her on a union blog.

The Tribunal found that the blog posts did not constitute harassment 'in the workplace' under s. 5(2) of the Human Rights Code because the blog was directed at union members and not accessed at work.

The Tribunal also found no discrimination with respect to employment under s. 5(1), balancing the applicant's Code rights against the union's Charter rights to freedom of expression and association regarding labour-management issues.

The applicants, individuals with intellectual disabilities residing in group homes, filed human rights complaints against the respondent unions.

They alleged that legal picketing by the unions at their group homes during lawful strikes constituted discrimination with respect to services and occupancy of accommodation under the Human Rights Code.

The Tribunal held a summary hearing to determine if the applications had a reasonable prospect of success.

The Tribunal found that the Code does not govern the relationship between a union and those using services at a place the union's members are picketing, as the union members were acting as union members rather than service providers.

The applications were dismissed.

The defendants sought leave to appeal a decision certifying a class action and permitting the plaintiffs to amend their statement of claim to include negligent design.

The class action concerned allegedly defective elevator sheave jammers that the defendants installed and later required replacement.

The defendants argued the motions judge misapplied the 'some basis in fact' test for certification by not weighing their evidence against the plaintiffs' evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting jurisprudence on the certification test and no reason to doubt the correctness of the motions judge's decision on either the certification or the pleading amendment.

The applicant, a graduate student, sought judicial review of a university decision to dismiss him for plagiarism, alleging procedural unfairness.

The Divisional Court dismissed the application primarily due to an unexplained delay of over 21 months in commencing the application and a further 9 months in perfecting it.

The Court also found no merit to the applicant's allegations of procedural unfairness, noting that the disciplinary process was conducted without undue delay and the applicant was afforded appropriate procedural rights.

The appellant solicitors appealed a motion judge's decision upholding an assessment officer's reduction of their legal fees.

The assessment officer reduced the fees because the solicitors failed to adequately advise the client of the costs consequences of the tactics she insisted upon.

The Court of Appeal dismissed the appeal, finding that the assessment officer's conclusion was not unreasonable given the specific circumstances of the client, which required extra efforts to clarify the harsh realities of costs consequences.