David L. Corbett

The appellant husband appealed three provisions of a final order made at a settlement conference regarding retroactive child support, retroactive spousal support, and ongoing spousal support.

The Divisional Court found that the conference judge bullied the self-represented husband into an equivocal consent, misinformed him about the law, made inappropriate comments about his cultural background, and denied him procedural fairness.

The appeal was allowed, and the support provisions were set aside without prejudice to the wife's claims.

The plaintiffs sought an extension of time to serve a statement of claim on a contractor nearly nine years after the action was commenced, and the defendants moved to dismiss the entire action for delay.

The court found the plaintiffs’ efforts to locate and serve the contractor were lackadaisical and that significant prejudice resulted from the lengthy delay, including loss of records, faded memory, and the death of a witness.

Accordingly, the court refused to extend time for service on that defendant.

However, although the court found a period of “inexcusable delay” in prosecuting the action, it held that the remaining defendants had not demonstrated prejudice sufficient to create a substantial risk that a fair trial was no longer possible.

The motion to dismiss the entire action for delay was therefore refused.

The plaintiff, a not-for-profit corporation operating Sikh temples, sought summary judgment declaring it had 38 members and an interlocutory injunction restraining the defendants from seizing control of the temples.

The defendants claimed the membership was 1087 and sought the appointment of a monitor and auditor, alleging financial mismanagement.

The court granted summary judgment finding there were only 38 members, as the defendants' claims regarding additional members were factually unfounded, barred by delay, and precluded by estoppel.

The court continued the interlocutory injunction against the defendants, finding they had unlawfully seized control of the plaintiff, and dismissed their request for a monitor and auditor.

The parties separated after a 22-year marriage.

They have a 28-year-old cognitively impaired daughter who remained living with the respondent father.

The father engaged in a severe campaign of parental alienation, completely severing the daughter's relationship with the applicant mother.

The mother sought custody and access, as well as spousal support.

The court confirmed its jurisdiction under the Divorce Act to make custody orders for adult disabled children.

Despite the father's alienating conduct, the court ordered that the daughter's primary residence remain with the father to respect her expressed wishes, but mandated regular access for the mother.

The court also imputed income to the father, finding him intentionally underemployed, and ordered him to pay $1,500 per month in retroactive and ongoing spousal support.

A subcontractor lien claimant, Swan & Associates Inc., moved for partial summary judgment declaring its claim for lien was timely.

The owner, the City of Guelph, opposed the motion, arguing the lien was registered out of time and that the recent work was for repairing deficiencies rather than contract work.

The court found that the intermittent architectural finishing work performed by the subcontractor was contract work, not deficiency work.

The court concluded on a balance of probabilities that the subcontractor's last date of supply was within the 45-day statutory period.

The motion for partial summary judgment was granted.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision terminating his loss of earnings benefits.

The Tribunal had concluded that the applicant's repetitive strain injury resolved on the date of a normal EMG study, despite ongoing symptoms documented by treating physicians.

The Divisional Court found the Tribunal's decision unreasonable, as it could not be reconciled with the undisputed medical evidence confirming ongoing impairment.

The application was allowed and the matter remitted to a differently constituted panel.

The moving parties sought leave to appeal an interlocutory injunction that prevented them from directly soliciting the responding party's customers after their business relationship deteriorated over allegations of contaminated products.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the RJR Macdonald test for an injunction, including the findings of a serious issue to be tried, irreparable harm to the responding party's business relationships, and the balance of convenience favouring the responding party.

The appellant appealed a trial judgment that granted the respondent $27,641.57 and dismissed the appellant's claim for constructive dismissal.

The Divisional Court found no error in the trial judge's placement of the onus on the appellant to prove constructive dismissal after the respondent proved he had resigned.

The court also found no palpable or overriding error in the trial judge's factual findings, including her rejection of the appellant's claim that he resigned due to unaddressed safety concerns.

The appeal was dismissed with costs.

The appellant tenant appealed a Board order granting vacant possession to the respondent landlord, based on a finding that the leases were fraudulent.

On the morning of the hearing, the self-represented appellant requested an adjournment to retain counsel.

The Divisional Court denied the adjournment, noting the delay would prejudice the respondent's pending sale of the property.

The Court dismissed the appeal, holding that the Board's conclusion regarding the fraudulent leases was reasonable and based on credibility findings that the Court had no jurisdiction to review.

The moving parties sought leave to appeal an interlocutory decision of the Ontario Municipal Board (OMB) which denied their motion to dismiss the respondent's appeal without a hearing.

The moving parties argued that the OMB had improperly made final determinations on their defences of res judicata and laches.

The Divisional Court dismissed the motion for leave to appeal, finding that the OMB's decision was interlocutory and merely determined that the issues were worthy of a full hearing, despite the OMB's reasons going further than necessary.

The Crown applied for certiorari to quash two decisions of a justice of the peace that refused to extend the detention of materials seized during a tax evasion investigation and ordered their return.

The justice of the peace had concluded that the nine and a half months the materials had been detained was a reasonable time for the authorities to review them.

The Superior Court granted the application and quashed the decisions, finding that the justice of the peace erred in law and exceeded his jurisdiction by conducting a retrospective review of the investigation's efficiency.

The court held that under s. 490(2) of the Criminal Code, the focus must be prospective, assessing whether the nature of the investigation justifies further detention, rather than second-guessing the pace of the investigation to date.

The appellant appealed a decision of the Financial Services Tribunal confirming the Superintendent's consent to merge two pension plans following a corporate amalgamation.

The appellant argued the merger and subsequent use of the actuarial surplus from one plan to fund contribution holidays for the merged plan constituted a revocation of trust.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable and correct.

The court held that the plan documents permitted the merger and that using actuarial surplus to fund contribution holidays while a plan is ongoing does not constitute a revocation of trust.

The appellant appealed a decision of the Social Benefits Tribunal which upheld the Director's finding that she was not a 'person with a disability' under the Ontario Disability Support Program Act.

The Tribunal found her chronic pain did not amount to a substantial impairment.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by assessing the appellant's condition on her 'good days' rather than her recurrent 'bad days', and failed to make findings on the frequency and unpredictability of her bad days.

The matter was remitted for a fresh hearing.