David M. Brown

The appellant tenant appealed a Landlord and Tenant Board decision dismissing his applications for repair costs and a rent abatement.

The tenant had alleged the landlord failed to repair his stove and refrigerator and interfered with his reasonable enjoyment due to a mould issue.

The Board found the landlord acted reasonably by offering alternative mould-free accommodation, which the tenant refused.

The Divisional Court dismissed the appeal, finding no error of law and concluding the Board's decision was reasonable and supported by the evidence.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy and ordering payment of rent arrears.

The tenants argued the Board's reasons were deficient and misapprehended evidence regarding their verbal agreement for rent and superintendent services.

The Divisional Court dismissed the appeal, finding that adequacy of reasons is not a stand-alone basis for quashing a decision and that the tenants' arguments amounted to an attempt to revisit factual findings, which does not constitute an error of law.

The plaintiffs appealed a Master's order removing their lawyer of record to the Divisional Court.

A preliminary jurisdictional issue arose regarding whether the order was final or interlocutory.

The Divisional Court held that, based on established jurisprudence, an order removing a lawyer of record is interlocutory in nature.

Consequently, the appeal properly lies to a judge of the Superior Court of Justice, not the Divisional Court.

The appeal was quashed for lack of jurisdiction.

The applicants, minority shareholders, commenced an oppression application against the respondents, the majority shareholders and the corporation.

The parties consented to a trial to determine the value of the applicants' shares, which the respondents would purchase.

The court resolved several methodological disputes between the parties' expert valuators regarding maintainable earnings, capitalization rates, and redundant assets.

Crucially, the court held that no minority discount should be applied to the valuation of the applicants' shares, as the purchase was a compulsory consolidation of the majority's position rather than an open market transaction.

The appellants, an engineer and his company, appealed a decision of the Discipline Committee of the Association of Professional Engineers of Ontario finding them guilty of professional misconduct and negligence in the design of a manure storage tank.

The Divisional Court allowed the appeal, finding that the Discipline Committee breached procedural fairness by adjudicating an allegation regarding a 'cut-out' in the tank wall without providing proper notice to the appellants.

Furthermore, the Court held that the Discipline Committee erred by relying on expert evidence that it had previously ruled inadmissible regarding the standard of practice.

The findings of professional misconduct were set aside, and the matter was remitted for a re-hearing before a differently constituted panel.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld the College of Physicians and Surgeons' decision to take no action on her complaint against a physician.

The applicant alleged the tribunal failed to address all her allegations.

The Divisional Court dismissed the application, finding that the tribunal was not required to address every allegation and that its decision was reasonable based on the evidence.

The appellant appealed a decision of the Criminal Injuries Compensation Board awarding compensation to her former son-in-law for injuries she caused him.

The appellant argued she was denied procedural fairness because the Board did not notify her of the hearing, despite her having returned a form explicitly checking a box to indicate she did not want notice.

She claimed the Board should have warned her of the potential impact of the hearing on a related civil action.

The Divisional Court dismissed the appeal, finding the appellant clearly waived her right to notice and the Board had no duty to provide legal advice regarding collateral civil proceedings.

The plaintiff appealed a Master's order dismissing its breach of contract action for delay at a status hearing under Rule 48.14(13).

The plaintiff had taken no steps to move the action forward for 26 months and provided no explanation for the delay.

The Divisional Court upheld the Master's decision, finding no error in the application of the conjunctive test for dismissal, which requires the plaintiff to demonstrate both an acceptable explanation for the delay and that the defendants would suffer no non-compensable prejudice.

The appeal was dismissed with costs.

In a case‑managed Commercial List proceeding, the successful parties sought full indemnity costs following success on a motion to compel production of documents and to resist a motion for bifurcation.

The court emphasized that case management aims to ensure timely, fair, and cost‑effective resolution of civil disputes and that parties are expected to resolve procedural disputes informally where possible.

The court held that litigation conduct undermining case‑management objectives—such as unreasonable resistance to documentary production or attempts to derail an agreed timetable—may justify elevated cost sanctions even absent traditional “reprehensible” conduct.

Applying Rule 57 factors and proportionality principles, the court found the requested costs reasonable.

Full indemnity costs were therefore awarded.

Following earlier reasons granting relief in a complex commercial dispute, the successful applicants sought substantial indemnity costs exceeding $428,000.

The respondents argued that prior settlement offers justified limiting costs to partial indemnity and challenged the hourly rates used in calculating substantial indemnity costs.

The court held that the settlement offers did not meet the requirements of Rule 49 and were not genuine offers capable of affecting costs.

Given findings of deceitful and fraudulent conduct by the respondents and failure to comply with court‑ordered accounting, substantial indemnity costs were warranted.

Applying proportionality principles and reviewing the bill of costs, the court found the hours and rates reasonable and awarded the full amount claimed.

The applicants and respondents entered into joint venture agreements to invest in commercial real estate projects through jointly owned companies.

The applicants discovered that the respondents were commingling funds, failing to make their required equity contributions, and diverting the applicants' funds to their own personal benefit and to companies they solely owned.

The court found that the respondents breached their contractual and fiduciary duties and were unjustly enriched.

The court imposed constructive trusts over several properties owned by the respondents, appointed a receiver over the respondents' assets, and cancelled the respondents' shares in the jointly owned companies where they had not contributed equity.

The respondents to a court application brought a motion to stay the proceeding in favour of arbitration under the International Commercial Arbitration Act.

The underlying dispute arose from a sales agency agreement containing an arbitration clause and an earlier arbitration award requiring payment of distribution revenues.

The applicants sought declaratory relief, breach of fiduciary duty findings, and oppression remedies under the Ontario Business Corporations Act against related corporate entities and an individual.

The court held that the moving parties lacked standing to request a stay because they were not parties to the arbitration agreement and had attorned to the court’s jurisdiction by filing substantive materials addressing the merits before seeking a stay.

The requirements under Article 8(1) of the Model Law were therefore not satisfied.

The motion to stay was dismissed and the application was directed to proceed to hearing.

The plaintiff moved to amend its Statement of Claim shortly before trial in a commercial dispute arising from the termination of a racetrack slots program agreement.

The defendant opposed the amendment on grounds including alleged limitation issues, withdrawal of a prior admission, expansion beyond the agreed issues list, and the inclusion of argumentative pleading.

The court reviewed the principles governing amendments under Rule 26 of the Rules of Civil Procedure and concluded that amendments should generally be granted unless non-compensable prejudice is demonstrated.

Finding no such prejudice, the court allowed the amendments but imposed conditions restricting further discovery and requiring the amendments to be filed in black‑line format.

The court also rejected arguments that the amendments improperly altered the character of the action or were barred by limitation on the record before it.

The defendants appealed an interlocutory order of a Master refusing to substitute a different representative for examination for discovery of a corporate defendant under Rule 31.03(2)(a) of the Rules of Civil Procedure.

The moving parties sought to replace the individual selected by the plaintiff with a different representative who was also a named defendant.

Applying the deferential standard of review for appeals from discretionary decisions of a Master, the court found that the Master correctly articulated the governing legal principles and reasonably exercised his discretion.

The court found no error in the Master’s analysis concerning the proposed substitution or the examination of the proposed representative in multiple capacities.

The appeal was dismissed and costs were fixed against the defendants.

The trustee in bankruptcy brought a motion for directions concerning responsibility for an appeal from an order dismissing a civil action previously commenced by the bankrupt.

The trustee had concluded that prosecuting the underlying actions would likely result in a net liability to the estate and the parties agreed the actions should be returned to the bankrupt pursuant to s. 40(1) of the Bankruptcy and Insolvency Act.

The dispute concerned whether the trustee or the bankrupt should pursue the appeal of the dismissed action after the trustee conveyed its interest back to the bankrupt.

The court held that the trustee had taken reasonable steps to preserve the action prior to dismissal and had not failed in its duties.

Once the action was returned to the bankrupt, responsibility for prosecuting the appeal fell to the bankrupt, who was also ordered to reimburse the trustee’s reasonable legal fees incurred in filing a placeholder appeal.

A partnership sought the appointment of an arbitrator under the Arbitration Act, 1991 following the withdrawal of a former partner and the issuance of a notice of arbitration alleging breaches of the partnership agreement.

The former partner moved to stay the arbitration pending resolution of a separate civil action involving other former partners and raised counterclaims challenging the validity of provisions in the partnership agreement.

The court held that the arbitration clause in the partnership agreement was broad and that the disputes raised by the partnership clearly fell within its scope.

The court found that the respondent’s counterclaim in the civil action was a colourable attempt to sidetrack the arbitration and that the issues could properly be determined by an arbitrator.

The motion to stay the arbitration was dismissed, the respondent’s counterclaim in the civil action was stayed, and the court appointed an arbitrator pursuant to the Arbitration Act, 1991.

Following reasons staying an application under s. 7(1) of the Arbitration Act, 1991 and referring the dispute to arbitration, the successful parties sought partial indemnity costs of over $169,000.

The opposing parties argued that most pre‑hearing work related to issues that would ultimately be determined in arbitration and requested that costs be limited to $7,500.

The court rejected those submissions, holding that parties who refuse to narrow the scope of a hearing cannot later complain about the extent of pre‑hearing work undertaken.

Applying Rule 57, proportionality, and appellate guidance on fixing reasonable costs, the court reduced certain unexplained factum‑drafting time but otherwise accepted the bill of costs.

Costs of $155,292.66 inclusive of disbursements and HST were awarded.

Following the dismissal of an action on cross-motions for summary judgment concerning contractual interpretation, the successful defendant sought costs exceeding $134,000 on a partial indemnity basis.

The court assessed the costs under Rule 57 of the Rules of Civil Procedure, considering proportionality, time spent, and the result achieved.

The judge reduced senior counsel’s claimed hourly rate and disallowed recovery for an expert where no expert report had been served under Tariff A. Applying the principles from appellate authorities governing fair and reasonable costs awards, the court fixed partial indemnity costs inclusive of HST.

The unsuccessful plaintiff was ordered to pay the adjusted costs within 30 days.

The court determined costs following the abandonment of a motion seeking to invalidate a mortgage registered against a Toronto property.

The moving party sought partial indemnity costs exceeding $12,000 after the applicants abandoned the motion.

The court held that the moving party was not entitled to recover costs incurred after a certain date because continuing to prepare materials was unreasonable while settlement discussions were ongoing and no hearing date had been set.

Considering the dockets and the proportionality of the work performed, the court found the claimed amount excessive.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court awarded reduced partial indemnity costs of $5,000.

In an estate dispute involving a will challenge and alleged resulting trust over joint bank accounts, the applicants sought an interlocutory order restricting an adult child’s access to joint accounts held with the deceased.

The court applied the presumption of resulting trust articulated in Pecore v. Pecore, which places the burden on the surviving joint account holder to establish that the deceased intended a gift of survivorship.

The court found that the respondent’s evidence rebutting the presumption was thin and raised a serious issue to be tried.

Given the risk of depletion of estate assets before trial, the court limited the respondent’s withdrawals from the accounts to $2,000 per month pending trial.

Costs were ordered in the cause.