David John Outerbridge

The appellants, two related home builders, appealed a License Appeal Tribunal (LAT) decision upholding Tarion Warranty Corporation's refusal and revocation of their applications for enrollment in the new home warranty plan.

The LAT found that the builders had a history of poor workmanship, warranty breaches, and failure to indemnify Tarion.

On appeal, the Divisional Court held that the LAT correctly interpreted 'conduct' under s. 10.3(4) of the Ontario New Home Warranties Plan Act to include construction and warranty service competence.

The Court found no palpable and overriding errors in the LAT's factual findings and concluded the LAT proceedings were procedurally fair.

The appeal was dismissed with costs.

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

This motion concerned the priority of new home purchasers' deposits in the bankruptcy of residential real estate developers (Stateview entities).

Tarion Warranty Corporation sought declaratory relief, arguing that the deposits were subject to express or constructive trusts due to unjust enrichment, which would elevate purchasers' claims.

The court dismissed Tarion's motion, finding that purchasers' agreements contained subordination clauses giving priority to secured lenders.

The court also determined that while express trusts existed for some purchasers with early termination provisions, these were not statutory deemed trusts.

Furthermore, there was no unjust enrichment for purchasers without express trusts, as the operation of the Bankruptcy and Insolvency Act constituted a juristic reason.

The court declined to impose a remedial constructive trust, emphasizing the high bar for such remedies in insolvency proceedings and the lack of a close causal connection between the deposits and the real property proceeds.

The applicant builder sought judicial review of a decision by Tarion Warranty Corporation ordering it to pay $7,500 in delayed occupancy compensation to a purchaser.

The builder argued that the delay was unavoidable due to a fire and the COVID-19 pandemic, and that it had provided proper notice to the purchaser.

The Divisional Court dismissed the application, finding that Tarion's decision was reasonable because the builder's notice failed to specify an end date for the unavoidable delay or provide a brief description of it, and the builder failed to provide sufficient evidence that the entire delay was caused by the fire and pandemic.

The moving party, Sun Life Assurance Company of Canada, brought two motions for leave to appeal the orders of the lower court regarding summary judgment and certification.

The Divisional Court dismissed both motions for leave to appeal.

The court awarded agreed aggregate costs of $25,000 to the responding party.

The plaintiff sought costs on a partial indemnity scale after successfully certifying her action as a class proceeding and defeating the defendant's motion for summary judgment.

The defendant argued that costs should be reduced or not awarded because the plaintiff failed to obtain a reverse summary judgment and the class definition was narrowed.

The court found the plaintiff was substantially successful and awarded costs of $300,000 plus HST and disbursements, slightly reduced from the claimed amount to reflect the lack of success on the reverse summary judgment request.

The defendant, Sun Life, brought a motion for summary judgment in a class proceeding regarding the calculation of annual indexing increases on long-term disability benefits.

The plaintiff argued for a reverse summary judgment.

The court found that the interpretation of the policy and the correct methodology to calculate the annual indexing of benefits where 'other income' is deducted raised a genuine issue requiring a trial.

The court dismissed both the defendant's motion for summary judgment and the plaintiff's request for a reverse summary judgment.

The plaintiff brought a motion to certify a class proceeding against Sun Life, alleging it incorrectly calculated long-term disability benefits by wrongfully deducting the inflation component from CPP and PSSA benefits.

Sun Life argued the plaintiff failed to meet the certification criteria.

The court found the pleadings disclosed a reasonable cause of action for breach of contract, though not for punitive damages.

The court amended the class definition to include a temporal limit based on the ultimate limitation period and certified the action, finding a class proceeding to be the preferable procedure.

The appellant, Hornepayne First Nation, failed to seek leave to appeal from a Superior Court judgment within the 15-day period mandated by section 49 of the Arbitration Act, 1991, and Rule 61.03.1(3) of the Rules of Civil Procedure.

As a result of this non-compliance, the appeal was quashed.

The moving party, Ontario First Nations (2008) Limited Partnership, was awarded costs of the motion.

Following the dismissal of the applicant's motion for an interim injunction, the respondent sought substantial indemnity costs.

The court found that the applicant had filed inaccurate and misleading evidence regarding its history of chargeable conciliations, which justified an enhanced costs award.

However, the court found the respondent's claimed amount of $86,845.95 to be disproportionate to the complexity of the matter.

The court awarded the respondent $45,000 in costs inclusive of disbursements and HST.

This is a costs endorsement following the dismissal of an appeal.

The Court of Appeal for Ontario awarded all-inclusive costs of $200,000 to the successful respondent, Ontario First Nations (2008) Limited Partnership, against the appellants, Ontario Lottery and Gaming Corporation and Her Majesty the Queen in right of Ontario.

The decision considered that this was the second level of appeal, the issues involved, and the respondent's success.

This is an appeal from a Superior Court decision upholding an arbitration award.

The arbitration panel found that Ontario and OLG breached a Gaming Revenue Sharing and Financial Agreement with the First Nations Partnership by unilaterally stopping payments of non-gaming revenue and complimentary services ("Comps") after outsourcing non-gaming amenities.

The Court of Appeal dismissed the appeals, affirming the lower court's decision that the Agreement was breached and the damages awarded were appropriate.

The court declined to rule on the standard of review for commercial arbitration decisions post-Vavilov, finding the outcome would be the same under either standard, and also declined to address the "honour of the Crown" doctrine as it was not determinative.

The applicant, a Near Band, challenged the jurisdiction of an arbitrator to hear a dispute arising from a limited partnership agreement concerning the distribution of gaming revenues.

The applicant argued it was not bound by the agreement because the individual who signed it on its behalf lacked authority.

The Superior Court of Justice, treating the application as a hearing de novo, found that the individual had apparent authority, no other person held themselves out as Chief at the time, and the applicant had accepted benefits under the agreement for six years.

The application was dismissed, and the arbitrator was found to have jurisdiction.

The applicant builder sought an interim injunction to prohibit the respondent statutory warranty corporation from conciliating delayed occupancy claims made by condominium purchasers.

The builder argued that the delays were caused by a municipal water supply issue and the COVID-19 pandemic, constituting an 'Unavoidable Delay', and that adverse conciliation decisions would irreparably harm its reputation.

The court dismissed the motion, finding no evidence of irreparable harm and concluding that the balance of convenience favoured allowing the statutory body to carry out its mandate to protect new home buyers.

Following the dismissal of the appellant's motion to stay, the respondent sought partial indemnity costs of $30,643.80.

The appellant argued costs should be fixed at $3,500.

The court found the respondent's claim excessive, noting that fees for two lawyers and a senior clerk were unreasonable for the motion, and the lead counsel's hourly rate was high for the Northwest Region.

Taking a global approach and considering the reasonable expectations of the unsuccessful party, the court fixed costs at $8,500 plus HST.

The moving party, Hornepayne First Nation, sought to stay an arbitrator's award pending its appeal.

The arbitrator had found the moving party in breach of its financial reporting obligations under a limited partnership agreement and ordered it to submit audited financial statements within 60 days to avoid forfeiture of $2.8 million in gaming revenues.

The court applied the RJR-MacDonald test and dismissed the motion, finding no irreparable harm because the respondent undertook not to distribute the funds pending the appeal, and concluding the balance of convenience favoured the respondent.

The plaintiff, a general contractor, sought an injunction to prevent Tarion Warranty Corporation from drawing on two performance bonds after Tarion terminated the plaintiff from a repair project for a leaking condominium parking garage.

The plaintiff argued the bonds were conditional payment obligations subject to a repair agreement.

The court found the bonds were autonomous demand bonds, meaning Tarion's right to call on them was independent of the underlying contract.

Applying the Supreme Court's decision in Angelica-Whitewear, the court held that an injunction against a demand bond requires a strong prima facie case of fraud.

As the plaintiff did not allege fraud, the motion was dismissed.

The court also noted the plaintiff would fail the traditional RJR-MacDonald test for injunctive relief.

The plaintiff insurance brokerage moved for partial summary judgment seeking a declaration that the defendant taxi management company held insurance premiums collected from its fleet members in trust for the insurer.

The court granted partial summary judgment regarding the first insurance contract (RSA Contract), finding a statutory trust arose under section 402 of the Insurance Act because the defendant acted as an agent in negotiating the insurance and received premium monies.

The court declined to grant partial summary judgment regarding the second insurance contract (FA Contract) due to factual complexities, but ordered the defendant to pay the collected premiums into court.

The plaintiff was wholly successful in a motion for summary judgment to enforce a settlement agreement regarding environmental pollution.

The plaintiff sought costs on a substantial indemnity basis, arguing the defendant overtly breached its settlement obligations and engaged in dilatory tactics.

The court found the defendant's conduct to be reprehensible, including attempting to secretly transfer assets and blocking remedial work.

The court awarded the plaintiff substantial indemnity costs in the amount of $212,532.99.

The defendant brought a motion requesting that its summary judgment motion be heard before the plaintiff's motion for certification of a class proceeding regarding the calculation of long-term disability benefits.

The plaintiff opposed, arguing the motions should be heard together or certification first.

The court applied the factors from Canon v. Funds for Canada Foundation and determined that hearing both motions at the same time would be the fairest and most efficient manner of proceeding, avoiding potential delays and multiple appeals.

The defendant's motion was dismissed.