David John Outerbridge

The appellants, Ontario Lottery and Gaming Corporation and Ontario, appealed an arbitration decision that found they breached the Gaming Revenue Sharing and Financial Agreement (GRSFA) by ceasing to share certain non-gaming and complimentary revenues with the respondent, Ontario First Nations (2008) Limited Partnership.

The Superior Court of Justice dismissed the appeal, holding that the standard of review for commercial arbitrations remains reasonableness post-Vavilov.

The court found the arbitration panel's contractual interpretation was reasonable, firmly rooted in the agreement's text and surrounding circumstances, and that the honour of the Crown doctrine was correctly applied to the government-to-government agreement.

Following a seven-day trial regarding adverse possession and a right of way, the parties appeared to settle the formal judgment and address costs.

The court amended the judgment under Rule 59.06 to include an omitted declaration regarding a gate encroachment and adopted registerable Land Titles descriptions for the disputed lands.

On costs, the court found the plaintiff was the substantially successful party and had beaten its pre-trial offer to settle.

The court fixed costs at $500,000 payable to the plaintiff, reflecting the high quality of advocacy and the application of Rule 49.10.

Friday Harbour and its predecessors operated a marina on Lake Simcoe, which involved dredging a channel that submerged part of a right of way (Block C) and using the remaining 'Marina strip' exclusively since the 1960s.

The defendant, owner of Block C, argued the right of way was abandoned and counterclaimed for trespass.

The court found that Friday Harbour acquired ownership of the Marina strip by adverse possession, as its use was open, notorious, exclusive, and inconsistent with the titled owner's intended use.

However, the court also found that Friday Harbour had abandoned its right of way over the 'Western strip' of Block C, as it had relied on the impassability of the barrier between the strips to establish its adverse possession claim.

The applicant builder sought judicial review of Tarion Warranty Corporation's decision finding it unwilling or unable to resolve warranty claims, which allowed Tarion to abridge vendor repair periods.

The Divisional Court dismissed the application without hearing the merits, finding that the issue was moot because the repair periods had long expired and Tarion had already undertaken the repairs.

The court also noted the applicant's unreasonable delay in bringing the application and the availability of an alternative remedy through an existing civil action.

The applicant sought judicial review of an order from the Licence Appeal Tribunal regarding its application for registration as a vendor under the Ontario New Home Warranties Plan Act.

The Divisional Court dismissed the application, finding that the pre-hearing order did not compel the Registrar to register the applicant, but only to consider the application.

The Court also held that judicial review was inappropriate because the applicant had an adequate and preferable alternative remedy through a statutory appeal to the Licence Appeal Tribunal, which provides a hearing de novo.

The appellant appealed a Licence Appeal Tribunal decision dismissing her appeal for lack of standing.

After initiating a claim against Tarion for the cost of an unapproved fireplace installation, the appellant sold her home but entered into a collateral agreement with the purchasers to maintain her claim.

The Divisional Court upheld the Tribunal's decision, confirming that under the Ontario New Home Warranties Plan Act, warranties run with the home and former owners lack standing.

The court further held that the collateral agreement could not assign the fireplace claim, as the purchasers had no such claim to assign, and assigning warranty claims violates s. 13(6) of the Act.

The Appellant brought a motion to compel the Respondent to abide by a pre-hearing consent order that allowed the Appellant to register as a vendor under the Ontario New Home Warranties Plan Act.

The Respondent brought a cross-motion to vary or read down the order, arguing that new information from the Elliot Lake Inquiry report regarding the Appellant's principal raised serious concerns about honesty and integrity.

The Tribunal found that the new information constituted changed circumstances that provided reasonable grounds to question the correctness of the consent order.

The Tribunal dismissed the Appellant's motion and amended the pre-hearing order to delete the consent provision and broaden the scope of the upcoming hearing.

The appellants, representing former Barbados participating policyholders of Manulife, brought a class action for negligence.

They claimed Manulife owed them a duty of care to protect their interests when it transferred their policies to another insurer in 1996, three years before Manulife demutualized and distributed $9 billion to its participating policyholders.

The trial judge dismissed the action, finding that while harm was foreseeable, policy reasons negated a duty of care.

The Court of Appeal dismissed the appeal, holding that the claim was for pure economic loss and did not fall within established categories.

The Court found no prima facie duty of care because the relationship lacked sufficient proximity, as the policyholders had no legally recognized right to share in a future demutualization at the time of the transfer, and the governing legislation permitted Manulife to terminate the relationship.

A non‑party developer sought a protective order restricting disclosure of its financial and project financing documents produced in litigation concerning a municipal RFP process.

The moving party argued the information was confidential and that disclosure to a competitor should be limited to counsel and experts and sealed from the public record.

Applying the test in Sierra Club of Canada v. Canada (Minister of Finance), the court held the evidence did not establish a real and substantial risk of harm or a sufficiently important commercial interest.

The court emphasized the open court principle and the public interest in transparency where allegations of political influence and misconduct in a municipal procurement process were raised.

The motion for a protective and sealing order was dismissed, though the court ordered reciprocal disclosure of equivalent financial documents relating to the plaintiff’s proposal.

The appellants appealed a decision setting aside a stay of proceedings granted by a Justice of the Peace.

The Court of Appeal dismissed the appeal, finding that while the officer's conduct might have justified a finding of abuse of process, a stay of proceedings was not the only remedy available.

The court emphasized that a stay is a prospective remedy of last resort, and lesser remedies, such as disregarding the officer's testimony or addressing disclosure issues, were sufficient to remove any prejudice.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent, Metropolitan Toronto Condominium Corporation No. 1352, was awarded costs of $30,000 on a partial indemnity basis.

The respondent Tarion Warranty Corporation was also awarded costs of $11,000, as the appellant was unsuccessful in seeking relief against it.

The appellants appealed the dismissal of a Rule 21 motion seeking to strike a condominium corporation’s action arising from alleged construction defects, including sanitary sewer failures and exterior cladding water penetration.

The court held that although Tarion’s warranty denial decisions were judicial and final for issue estoppel purposes, applying issue estoppel would work an injustice given the consumer protection purpose of the Ontario New Home Warranties Plan Act, the permissive language of the tribunal appeal provisions, the procedural limits of Tarion proceedings, and the advantage of resolving all claims in one forum.

The court further held that the civil action was not an impermissible collateral attack, that Tarion could be sued for payment from the guarantee fund, that the sanitary sewer allegations were not plainly outside the definition of major structural defect, and that the EIFS limitation argument failed.

The appeal was dismissed.

The applicants brought a motion for an extension of time to appeal a decision letter from Tarion Warranty Corporation regarding new home warranty claims.

The parties had previously executed a settlement agreement and release in December 2010 covering the claims at issue.

Applying the four-factor test for extending time, the Tribunal found the delay was unexplained, the respondent would be prejudiced by reopening settled claims, and the appeal lacked merit due to the binding release.

The motion was dismissed and costs of $400 were awarded to the respondent.

The applicants sought leave to appeal a decision reversing a stay of proceedings.

The trial judge had stayed the proceedings for operating a public garage contrary to a municipal by-law, finding the prosecution was an abuse of process based on the by-law officer's evidence.

The appeal judge reversed the stay and ordered a new trial.

The Court of Appeal granted leave to appeal under s. 131 of the Provincial Offences Act, finding the case raised significant questions of law regarding the laying of charges by enforcement officers that met the public interest requirement.

The plaintiffs, representing a class of Barbados participating policyholders, brought an action against Manulife following the transfer of their policies to Life of Barbados (LOB) in 1996 and Manulife's subsequent demutualization in 1999.

The plaintiffs claimed that Manulife owed them a duty of care and a fiduciary duty to protect their rights to participate in the demutualization.

The court found that while it was reasonably foreseeable that Manulife would demutualize, no duty of care or fiduciary duty was owed to the plaintiffs because their rights as policyholders were lawfully extinguished by the transfer agreement, which was approved by regulators in Barbados and Canada.

The action was dismissed.

The applicant filed a human rights application alleging that Tarion Warranty Corporation and the Tarion Ombudsperson Office discriminated against the claimant on the basis of disability by failing to consider her Code-related needs when determining that floor noises in her new home were not a warrantable major structural defect.

The Tribunal dismissed the application against Tarion under s. 45.1 of the Code, finding that the substance of the application had been appropriately dealt with in Tarion's adjudicative proceeding, which addressed the human rights arguments.

The application against the Ombudsperson was also dismissed as having no reasonable prospect of success, as there was no allegation that the claimant's disability was a factor in the Ombudsperson's decision not to pursue the complaint.

The respondent contractor was retained to construct a new home.

He performed most of the work, but the owners installed the well, septic system, and fireplaces.

The respondent was charged with failing to register as a builder under the Ontario New Home Warranties Plan Act.

He was acquitted at trial and on appeal on the basis that he was not a 'builder' because he did not perform all the work.

The Court of Appeal allowed the appeal, holding that the Act is consumer protection legislation requiring a broad interpretation.

A contractor who performs a significant portion of the construction is a 'builder' even if the owner is responsible for some work.

The respondent, an architect, began constructing a new home with the intention of occupying it with his family.

When his existing home failed to sell, his intention changed, and he eventually sold the new home.

He was charged with acting as an unregistered builder and failing to enrol the home under the Ontario New Home Warranties Plan Act.

The Court of Appeal upheld his acquittals, finding that the statutory definition of 'builder' applies to those who undertake construction for the purpose of sale from the outset, not to those who begin building for personal use and later change their intention.

The applicant appealed a decision by Tarion Warranty Corporation denying a request for a conciliation inspection regarding the brick colour of their new home.

Tarion brought a motion to dismiss the appeal on the basis that the request was statute-barred.

The Licence Appeal Tribunal found that the applicant failed to request the conciliation inspection within the prescribed time limit under O. Reg. 892 of the Ontario New Home Warranties Plan Act.

Consequently, the tribunal ordered that the applicant's claim was out of time and dismissed the appeal.

Following the dismissal of the appellant's appeal regarding a claim to Casino Rama profits, the successful respondents sought costs on a full or substantial indemnity scale, citing the appellant's conduct and shifting theories.

The Court of Appeal declined to award elevated costs, finding the appellant's conduct was not reprehensible, scandalous, or outrageous.

Costs were awarded on a partial indemnity scale, fixed at $250,000 for the Chiefs of Ontario and OFNLP, and $75,000 for Ontario.