David R. Aston

The plaintiff appealed the dismissal of her class action certification motion, conceding that the proposed class definition before the motion judge was defective.

On appeal, the plaintiff sought to certify the proceeding based on a newly drafted class definition and restated common issues.

The Divisional Court dismissed the appeal, holding that an appeal is not the proper forum to raise fundamental new issues that alter the landscape of the litigation, and that any motion based on a reconstituted class definition should be brought at first instance.

The Municipality of North Middlesex appealed two decisions of the Environmental Review Tribunal regarding a Renewable Energy Approval under the Environmental Protection Act.

The Tribunal had struck the Municipality's Notice of Constitutional Question and refused to grant it public interest standing.

The Divisional Court dismissed the appeal, finding that the Tribunal correctly applied the law, did not err in principle, and provided compelling reasons.

The applicants sought judicial review of an interlocutory decision by the Licence Appeal Tribunal, which refused to allow them to carry on their motor vehicle sales business pending a fresh licence application.

The applicants had negligently failed to renew their licences before expiry.

The Divisional Court held that the Vice Chair's decision was reasonable and that the Registrar had no obligation to permit them to operate while unlicensed.

Furthermore, the court found the judicial review application to be premature as it did not meet the test for reviewing interlocutory tribunal decisions.

The application was dismissed with costs.

The defendant appealed an interlocutory order that dismissed his motion to strike the plaintiffs' civil contempt motion for lack of particulars, but ordered the plaintiffs to provide clear and concise particulars.

The Divisional Court allowed the appeal and dismissed the contempt motion, finding that the motions judge erred in applying the test for adequate particulars by failing to recognize the strictissimi juris nature of civil contempt proceedings.

The court also held that the motions judge erred in principle by granting the plaintiffs an unsolicited right to amend their defective motion without balancing the relevant factors.

The appellant appealed the dismissal of her claim for unpaid commissions.

The trial judge had dismissed the claim, finding the contract was with the appellant's numbered company and the limitation period had expired.

The Divisional Court found the trial judge erred in making these findings without hearing evidence.

However, the appeal was dismissed because the appellant had previously initiated the same claim through her company more than two years before issuing the current claim, meaning the action was clearly statute-barred.

The appellant appealed a decision of the Health Professions Appeal and Review Board, which confirmed the College of Nurses' refusal to issue her a certificate of registration.

The appellant had failed the mandatory registration examination four times and requested to review her examination questions and answers, which the College refused.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable as there is no discretion to register an applicant who has not passed the examination, and the College had legitimate reasons for refusing the review request.

The applicants, owners of designated physiotherapy clinics, sought judicial review to quash Regulation 138/13, which delisted their clinics and changed the funding model for physiotherapy services.

They argued the regulation was enacted in violation of a government policy requiring a 45-day consultation period, thereby breaching their legitimate expectations of procedural fairness.

The Divisional Court dismissed the application, finding that the policy did not create a clear, unambiguous, and unqualified representation, as it expressly allowed for exceptions.

Furthermore, the court noted that quashing the regulation would be futile, as the government could simply re-enact it after a formal consultation period, having already heard and rejected the applicants' views.

The Township of Muskoka Lakes brought an application for judicial review to stop the Ministry of Natural Resources from leasing Crown lands to Swift River Energy Limited for the construction of a hydro-electric facility.

The Township argued that the Ministry's decision to issue a Notice under s. 28 of the Public Lands Act prohibiting public access to the lands was unreasonable and an attempt to thwart portage and public access rights.

The Divisional Court dismissed the application, finding that the Ministry's decision was reasonable given the public safety concerns associated with the site, where two drownings had previously occurred.

The court also noted that a lease of Crown lands does not constitute a disposition under s. 65(4) of the Act.

The appellant appealed a motion judge's order enforcing a settlement of her claims for statutory accident benefits against her automobile insurer.

The appellant had accepted an offer to settle but later rescinded it, arguing the offer did not qualify as a Rule 49 offer and thus was subject to the rescission provisions of the Automobile Insurance Regulation.

The Divisional Court agreed, finding the offer required the appellant to release future claims not included in her statement of claim, meaning it was not a valid Rule 49 offer.

The appeal was allowed and the judgment enforcing the settlement was set aside.

The applicants brought an application for judicial review to challenge the Chief Coroner's decision not to hold an inquest into the death of their son.

At the hearing, the applicants withdrew their request for an inquest and instead sought an order in the nature of mandamus to compel the Coroner's Office to change the manner of death determination from suicide to undetermined.

The Divisional Court dismissed the application, holding that the applicants only had standing to challenge the decision not to hold an inquest, and that mandamus could not be used to compel the Coroner to exercise discretionary investigative functions or to usurp the role of a coroner's jury.

The defendant broadcaster brought a motion for summary judgment seeking dismissal of claims arising from the plaintiffs’ appearance on a television program pitching a board game.

The plaintiffs alleged that the broadcast segment misrepresented the original recording and advanced claims for breach of contract, defamation, negligence, and injurious falsehood.

The court held that a broadly worded Consent and Release signed by the participant barred all claims, including negligence and defamation, and that the language clearly authorized editing in the producer’s sole discretion.

The court rejected arguments that enforcement would be unconscionable or contrary to public policy and found no evidence supporting allegations of bad faith editing.

Summary judgment was granted and the action dismissed.

The appellant corporation appealed Ontario corporate tax assessments arising from interest income earned through refinancing transactions within a corporate group.

The appellant argued the interest constituted income from property and therefore fell outside the scope of Ontario taxation under the pre‑2005 Corporations Tax Act regime applicable to non‑Canadian incorporated corporations.

The court held that the interest income formed part of a business carried on in Canada because the corporation’s core purpose was to facilitate financing transactions within the corporate group and administer the resulting debt instruments in Canada.

As a result, the interest income constituted income from a business carried on in Canada within the meaning of s. 115 of the Income Tax Act and was taxable in Ontario.

The court upheld the Minister’s assessments and found it unnecessary to conduct a full GAAR analysis.

The applicant appealed a decision of the Criminal Injuries Compensation Board denying his claim for compensation for mental and nervous shock following the death of his estranged wife.

The wife died after falling from a vehicle while attempting to sell illicit drugs.

The Board denied the applicant's claim based entirely on the wife's illegal conduct.

The Divisional Court allowed the appeal, finding that the Board unreasonably failed to distinguish between the applicant's conduct and the wife's conduct, as the applicant was claiming as an independent victim.

The matter was remitted to a differently constituted panel for a new hearing.

The appellant was successful on appeal and cross-appeal and sought partial indemnity costs of approximately $30,000.

The Divisional Court found the claimed hours and rates disproportionately high and fixed the costs of the appeal at $17,500 all inclusive.

The court declined to exercise its jurisdiction to award costs of the trial, leaving that determination to the trial judge or an assessment officer due to a prior reservation of jurisdiction and a dispute over an agreement between counsel.

The appellant appealed the dismissal of his claim for damages arising from a motor vehicle accident.

At trial, the judge excluded opinion evidence from several of the appellant's treating professionals and medical assessors because they had not complied with the expert report requirements of Rule 53.03.

The Divisional Court upheld the trial judge's rulings, confirming that the application of Rule 53.03 depends on the nature of the evidence (opinion vs. factual) rather than the role of the witness (treating professional vs. litigation expert).

The court held that any witness seeking to provide expert opinion evidence must comply with Rule 53.03.

The plaintiff sought indemnity from a builder corporation and several individual investors for payments made to homeowners under the Ontario New Home Warranties Plan Act.

The claim relied on a Tarion standard-form indemnity agreement allegedly signed by the individual defendants.

The court found the individual defendants had only signed a single signature page that had been fraudulently inserted among unrelated financing documents by another defendant, and that earlier versions of the agreement submitted to the plaintiff were forgeries.

Although the defendants were careless in signing the document, the plaintiff’s own lack of diligence in accepting altered net worth statements and failing to verify the indemnitors contributed materially to the circumstances.

Balancing the competing principles from fraud and non est factum jurisprudence, the court held the defendants were not liable under the purported indemnity agreement.

The court determined costs following the disposition of a civil action involving claims, counterclaims, and third party proceedings.

The third party claims and counterclaims were deemed dismissed under Rules 24.04 and 24.03 of the Rules of Civil Procedure.

The court held that the plaintiff should indemnify the defendants for any costs payable to the third parties and awarded partial indemnity costs to the defendants for defending the action and for the third party claims.

Costs were fixed for motions, third party proceedings, and the main action in favour of both groups of defendants, with reductions reflecting reasonable expectations and prior related litigation.

The applicant sought judicial review of a decision by the Office of the Independent Police Review Director (OIPRD) to not deal with his complaint regarding the conduct of the Chief of Police and other senior officers during the G20 summit.

The OIPRD dismissed the complaint under s. 60(2) of the Police Services Act because it was filed more than six months after the incident.

The Divisional Court quashed the decision, finding that the Director breached procedural fairness and statutory requirements by failing to provide adequate reasons.

The court held that s. 60(2) is not a strict limitation period and requires consideration of discoverability and public interest.

The matter was remitted to the Director for reconsideration; mandamus was denied.

The appellant appealed the dismissal of her application for an order compelling the Chief Building Official to issue a building permit for a residential dwelling.

The lot in question was created through a scheme involving the registration of sham deeds designed to evade the subdivision control provisions of the Planning Act.

The Divisional Court upheld the application judge's finding that the scheme was a fraud upon the Planning Act, meaning the deeds did not convey valid title.

As the appellant was not the lawful owner of the land, she was not eligible to apply for a building permit.

The appeal was dismissed.

The appellants appealed a decision denying certification of a proposed class proceeding against CIBC and CIBC World Markets for alleged misclassification of employees making them ineligible for overtime.

The Divisional Court dismissed the appeal, finding that despite an amended class definition, the issue of eligibility for overtime for Investment Advisors and Associate Investment Advisors required individual, case-by-case determinations regarding their managerial or supervisory functions.

The appellants failed to establish a basis in fact that the job functions were sufficiently similar to be resolved as a common issue.