David L. Corbett

The appellant appealed a decision of the Social Benefits Tribunal upholding the denial of her application for income support under the Ontario Disability Support Program Act.

The tribunal had found that her impairments, including social phobia and anxiety, were not substantial and she did not meet the definition of a person with a disability.

The Divisional Court dismissed the appeal, holding that the tribunal's weighing of the evidence to determine if impairments were substantial did not raise an extricable question of law.

The appellants appealed a Master's order severing their civil claims for historic sexual assault against a family member into separate actions.

The court considered the joinder provisions under Rules 5.01 and 5.02 of the Rules of Civil Procedure, including whether the claims arose from the same series of occurrences and whether common issues of fact justified joinder.

The court held that allegations of sexual assault against siblings occurring in the same location and general time period could constitute a series of occurrences and involve common factual issues.

Concerns about similar fact reasoning and potential tailoring of evidence were found to be matters better managed by the trial judge through evidentiary rulings and case management.

The appeal was allowed and the Master's severance order was set aside without prejudice to a future severance motion before the trial judge.

The parties disagreed on the form of the order reflecting the court's appeal decision regarding class certification.

The appellant argued the class should expressly include recipients of both English and French versions of the documents, while the respondent argued it should be restricted to the English version.

The Divisional Court agreed with the appellant, noting no distinction was made during the appeal, and varied the certification order to include both language versions.

The plaintiff supplier moved for summary judgment to recover a liquidated debt for packaging products delivered under purchase orders totaling over US$280,000.

The defendants asserted a counterclaim alleging the plaintiff bribed a purchasing employee to manipulate purchasing practices, causing losses exceeding $1.7 million.

After previously granting the defendants an opportunity to provide evidence of damages, the court found the defendants had failed to produce expert or analytical evidence establishing material damages.

The court held that the evidence supported only a potential claim for unliquidated punitive damages and did not justify delaying payment of the uncontested debt.

Summary judgment was granted to the plaintiff for the liquidated claim, the defence of set‑off was dismissed, and the counterclaim was permitted to proceed to trial.

The plaintiff brought a defamation action arising from an internet article that repeated and endorsed allegations originally published in a national newspaper accusing the plaintiff of fabricating racist material to support human rights complaints.

The defendant republished the article on a website and added commentary portraying the plaintiff as corrupt and engaged in “phony-racism.” The court found the publication clearly defamatory and rejected the defences of fair comment, qualified privilege, and responsible communication, holding that the article primarily asserted defamatory facts and that internet publication to the world was not an occasion of privilege.

The defendant had relied on a previously retracted newspaper article without conducting further verification.

General damages of $10,000 were awarded, and the defendant’s posted retraction and apology were found inadequate to reduce the damages.

The applicant employer sought judicial review of a Grievance Settlement Board arbitration award that ordered rectification of a collective agreement's recognition clause.

The Board found that exclusionary language regarding office and technical staff had been inserted by mistake.

The Divisional Court held that the standard of review for an arbitrator's application of the equitable doctrine of rectification is reasonableness.

The Court upheld the Board's decision to rectify the agreement by removing the mistakenly inserted language.

However, the Court found the Board's subsequent interpretation of the rectified clause and its order for the parties to draft new language to be unreasonable, and set aside that portion of the award.

In ongoing case-managed proceedings involving a proposed vexatious litigant declaration under s. 140 of the Courts of Justice Act, the applicant sought the case management judge’s recusal and challenged portions of affidavit evidence as inadmissible hearsay.

The court held that evidentiary questions regarding the scope of cross-examination and admissibility should be determined by the judge hearing the substantive s. 140 application.

The judge concluded that, as the assigned case management judge overseeing all related proceedings, he had jurisdiction to hear the s. 140 application and that doing so was the most practical and proportionate course.

The court rejected arguments that prior interlocutory rulings created a reasonable apprehension of bias.

The motion for recusal was dismissed.

A common elements condominium corporation sought to recover unpaid common expenses and interest from the unit owners of a related condominium corporation.

The court held that the applicable limitation period for the debt claim was two years under the Limitations Act, and claims arising earlier were statute‑barred.

The court further found that expired condominium lien rights could not be revived by recharacterizing arrears as damages under the Condominium Act.

Because the dispute concerned accounting and reasonableness of common expenses under the declaration and by‑laws, the court held the parties were required to pursue mediation and arbitration before litigation.

Most of the claim was dismissed and the remaining issues were directed to mediation/arbitration.

The appellant, a registered car dealer, appealed a decision of the Licence Appeals Tribunal directing the revocation of his registration.

The tribunal based its decision partly on the appellant's continuing assertion of innocence regarding a sexual assault conviction and the negative credibility findings made by the criminal trial judge.

The Divisional Court allowed the appeal, finding that the tribunal erred in law by treating the appellant's exercise of his right to assert innocence and appeal his conviction as aggravating factors.

The matter was remitted to a differently constituted tribunal for a fresh hearing.

The appellant appealed a family law trial decision to the Divisional Court.

The trial judgment ordered periodic child support and spousal support payments that, in aggregate, exceeded $50,000 annually.

Although the parties agreed the Divisional Court had jurisdiction because only the spousal support (under $50,000) was being appealed, the court held that jurisdiction is determined by the total amount of periodic payments ordered in the judgment, not the amount in issue on appeal.

The appeal was transferred to the Court of Appeal.

Following the dismissal of a motion for leave to appeal in writing, the court issued a costs endorsement.

The court had previously fixed costs at $7,500 payable by the moving parties to the responding parties.

The moving parties sought to vary the costs award, arguing they were prejudiced because the responding parties had not filed costs submissions prior to the hearing date.

The court declined to change the costs award, noting the new practice for written leave motions and finding the $7,500 award fair and reasonable based on the volume of materials and complexity of the matter.

The plaintiff contractor brought a motion seeking a preservation order under Rule 45.02 of the Rules of Civil Procedure to secure an alleged constructive trust interest in a residential property that was about to be sold.

The moving party had supplied services and materials for the construction of the property but failed to register a construction lien within the time limits prescribed by the Construction Lien Act.

The plaintiff argued that if the contract were voidable due to non‑registration under the New Home Warranty Program Act, he could assert a constructive trust claim and obtain security through a preservation order.

The court held that the Construction Lien Act governs claims arising from the supply of services or materials to an improvement regardless of whether the claim is framed in contract or constructive trust.

Allowing a preservation order would undermine the statutory lien scheme and permit the plaintiff to circumvent the Act’s deadlines.

The motion was dismissed.

Application concerning interpretation of an escrow clause in an agreement of purchase and sale for three apartment buildings.

A portion of the purchase price was held in escrow for three years and payable to the vendor if the buildings' rent roll met a specified annualized threshold by the end of the performance period.

The purchaser argued that performance should be assessed based on actual rental income over the three‑year period.

The court held that the clause required examination of the rent roll and that the escrow amount was payable if the annualized gross rental threshold was reached in any month during the performance period.

Finding that the threshold was met in April 2014, the court ordered the escrow funds and accrued interest paid to the vendor.

A court-appointed receiver sought summary judgment for payment under a manufacturing contract after the defendant failed to pay the contract price for equipment that had been delivered and for which the defendant had already been paid by its own customer.

The defendant asserted legal and equitable set-off based on alleged claims arising from earlier contracts and potential future warranty liabilities.

The court held that the prior claims were unliquidated and unrelated to the contract at issue and therefore could not ground legal or equitable set-off.

The alleged contingent warranty claims were speculative and unsupported by evidence.

Summary judgment was granted in favour of the receiver.

The appellants appealed the Ontario Securities Commission's (OSC) decisions on the merits and sanctions regarding their conduct in the investment industry.

The Divisional Court held that the standard of review for the OSC's decisions is reasonableness, except for procedural fairness.

The court found that the OSC reasonably excluded fresh evidence, reasonably upheld the Investment Industry Regulatory Organization of Canada's (IIROC) findings on the merits, and conducted a procedurally fair fresh sanctions hearing.

The appeal was dismissed.

The applicant sought judicial review of a director's delegate's decision which overturned an arbitrator's finding that the applicant was not bound by the $3,500 limit for medical and rehabilitation benefits under the Statutory Accident Benefits Schedule (SABS).

The Divisional Court held that the director's delegate reasonably concluded that sections 14 and 18 of the SABS create limits on liability rather than exclusions, meaning the burden of proof remains on the insured.

However, the court found the director's delegate erred in concluding that the Minor Injury Guideline is entirely binding as if it were part of the SABS, holding instead that it is only incorporated by reference where expressly required for interpretation.

The application for judicial review was allowed and the matter remitted for a new preliminary issue hearing.

Wrongful dismissal action by a senior investment professional terminated for alleged cause after disclosing a private placement memorandum to an outside contact.

The court held the employer failed to prove the document was confidential or that its disclosure breached the employer’s code of conduct, and in any event the conduct would not have justified dismissal for cause.

Applying reasonable notice principles, the court fixed notice at 15 months in light of the employee’s senior role, compensation structure, and impaired re-employment prospects arising from the manner of dismissal.

The court also held proposed 2010 amendments to incentive plans were not binding because they were not accepted by the employee, and awarded salary, AIP, LTIP, pension, and prorated AIP damages less mitigation income.

The applicants, two environmental organizations, brought an application challenging the validity of Ontario Regulation 176/13 made under the Endangered Species Act, 2007.

They argued the Minister failed to meet a mandatory condition precedent under s. 57(1) of the Act and that the regulation was inconsistent with the Act's purposes.

The Divisional Court dismissed the application, finding that the Minister had properly formed the required opinion that the regulation would not jeopardize the survival of species at risk, and that the regulation's balancing of environmental protection with economic considerations was consistent with the broader purposes of the Act.

The appellant tenant appealed an order of the Landlord and Tenant Board and sought an adjournment before the Divisional Court to obtain counsel to negotiate a payment plan for $15,000 in rental arrears.

The court found that the appellant had a history of 'gaming the system' by requesting adjournments, failing to attend hearings, and accruing uncollectable arrears.

The court denied the adjournment, quashed the appeal, lifted the stay of the Board's eviction order, and directed the sheriff to enforce the order.

The applicant sought leave to appeal a $4,000 costs order made in a family law proceeding.

The motion was brought before a three-judge panel of the Divisional Court.

The panel dismissed the motion, holding that motions for leave to appeal to the Divisional Court must be brought before a single judge, not a panel of three judges.

This rule applies regardless of whether the appeal is from an interlocutory order, a costs order, or an administrative tribunal.