Derek M. Sinko

The appellant appealed a summary judgment holding it jointly liable with a related corporation for wrongful dismissal under the common employer doctrine.

The court held that the motion judge applied the correct legal test, made findings available on the record, and committed no palpable and overriding error in concluding that both corporations jointly ran the hotel and intended to create an employment relationship with the deceased employee.

The court also upheld the conclusion that res judicata and abuse of process did not bar the estate's subsequent claim against the appellant, because the appellant was not a defendant in the initial action and the corporate relationship was not easily discernable.

The appeal was dismissed with partial indemnity costs to the respondent.

The moving parties brought a motion for leave to appeal the decision of Braid J. dated October 9, 2025.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding party.

The plaintiffs, Lee Anthony Delfino and Standing O Entertainment Group Inc., sued the Intercounty Baseball League and its commissioner, John Kastner, for breach of contract and negligence after their team, the Brantford Red Sox, was eliminated from the 2016 playoffs.

The claim arose from the commissioner’s decision to allow a Toronto Maple Leafs player, Mike Wagner, to participate in the playoffs despite allegations he was ineligible under league rules.

The court found that the league’s governance documents delegated final authority on eligibility to the commissioner, and that his decision was made in good faith and within his discretion.

The court dismissed the claim, holding that there was no breach of contract or negligence, and that the process followed was procedurally fair.

The court considered whether a United States gift tax liability arising from a 2009 transfer of Florida property by the deceased, Carolyn Alexander, was a just debt of her Ontario estate.

The applicant, Carrie Lynn Dyjack, sought the court’s direction after paying the tax and related expenses personally.

The court found that the U.S. Gift Tax was a proper liability of the estate, rejecting the respondent’s arguments that the tax was not intended to be paid from the estate, that it was a “charge” payable by the beneficiary under the Succession Law Reform Act, or that it was unenforceable in Canada.

The court ordered the estate to reimburse the applicant for the tax and related expenses.

The Court of Appeal for Ontario allowed the appeal, set aside the summary judgment, and awarded costs to the appellants.

The court found that the motion judge erred in law by holding that the purchasers' requisitions regarding oil and gas leases were invalid because they did not go to the root of title.

The court was not satisfied that it could determine the validity of the requisitions on the record before it.

The appellant appealed the dismissal of his claims for adverse possession or a prescriptive easement over parts of the respondents' neighbouring cottage property, which he had historically used to access Lake Erie.

The Court of Appeal upheld the trial judge's findings that the appellant's use of the lands was with tacit permission as an act of good neighbourliness, rather than acquiescence, and that the easement was not reasonably necessary given alternative access routes.

The court also affirmed the dismissal of the adverse possession claim, as the appellant failed to establish an intention to exclude the true owners.

The appeal was dismissed with costs.

The court considered a motion by the Defendants to strike portions of the Plaintiffs’ amended claim or, in the alternative, for summary judgment dismissing the Plaintiffs’ claim for an easement for drainage.

The court found that while the Plaintiffs’ pleadings disclosed a reasonable cause of action, there was no genuine issue for trial regarding the easement claim.

The Plaintiffs failed to provide sufficient evidence to define the easement with adequate specificity or to show that an easement of necessity or by common intention existed at the time of severance.

The claim for an easement for drainage was summarily dismissed.

The estate trustee appealed a costs order that denied her indemnification for legal expenses incurred while representing the estate in a dependent's relief application.

The Divisional Court allowed the appeal, finding the application judge erred in principle and failed to provide adequate reasons for denying costs.

Applying the framework for blended costs in estate litigation, the court awarded the estate trustee full recovery of her costs on a substantial indemnity basis, with the majority payable by the respondent whose egregious conduct unnecessarily increased the litigation costs, and the balance payable by the estate.

The court determined costs following a simplified proceeding trial where both the plaintiff's claim (adverse possession, prescriptive easement) and the defendants' counterclaim (injunction, trespass damages) were dismissed.

The defendants sought substantial indemnity costs of $172,028.97.

The plaintiff argued for no costs due to divided success or the Rule 76.12.1(1) limit.

The court found the Rule 76.12.1(2) exception applied as the action commenced before January 1, 2020.

Considering mixed success, the defendants' more favourable offer to settle, and the principles of proportionality and cost minimization in simplified proceedings (Rule 76), the court awarded the defendants $75,000.00 inclusive of disbursements and HST.

The moving party, the Estate Trustee Without a Will, brought a motion for leave to appeal the costs orders of the motion judge.

The Divisional Court held that the impugned order was solely in respect to costs, requiring leave to appeal under the Courts of Justice Act.

The court granted leave to appeal the denial of costs to the Estate Trustee During Litigation payable by any of the parties or from the Estate.

A case conference was held to determine the procedure for appealing a costs-only order made under Part V of the Succession Law Reform Act.

The appellant argued that s. 76 of the Act provides an appeal as of right, while s. 133 of the Courts of Justice Act requires leave to appeal costs orders.

The case management judge directed that any party seeking to appeal the costs order must bring a motion for leave to appeal in writing under Rule 62.02, where they may make submissions on the apparent statutory conflict.

This appeal concerned the interpretation of a will clause granting an option to purchase "the farming business carried on by me." The testator had ceased active farming years prior to her death, instead leasing the land.

The application judge found the farming business had ceased, causing the option to lapse.

The Court of Appeal reversed, holding that the application judge erred by not applying the presumption under s. 22 of the Succession Law Reform Act, which states a will speaks as if made immediately before death.

The Court found that the testator was still carrying on a farming business at the time of her death through leasing the land and declaring farm income, thus the option was valid.

Following the dismissal of both the plaintiff's action for constructive dismissal and the defendant's counterclaim for breach of restrictive covenants on summary judgment, the parties made written submissions on costs.

The defendant sought substantial indemnity costs based on an offer to settle, while the plaintiff sought partial indemnity costs for defending the counterclaim.

The court found the defendant's offer was an invitation to capitulate rather than a genuine compromise, and ordered that each party bear their own costs.

The plaintiff, a dental hygienist, resigned and sued her former employer for constructive dismissal after her hours were reduced.

The defendant counterclaimed for breach of non-competition and non-solicitation clauses.

On cross-motions for summary judgment, the court dismissed both the action and the counterclaim.

The court found the termination, non-competition, and non-solicitation clauses in the employment contract were unenforceable.

However, the court also found the plaintiff was not constructively dismissed, as the reduction in hours merely reverted her schedule to its historical norm and did not breach an essential term of the contract.

The moving party brought a motion for leave to appeal the order of M.R. Gibson J. dated September 20, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

Following the dismissal of the plaintiff's action on summary judgment, the defendants sought full indemnity costs against the plaintiff and its principal personally.

The court found that the plaintiff's principal had fabricated an agreement of purchase and sale to support the claim, constituting an abuse of process.

The court awarded substantial indemnity costs to the defendants and held the principal jointly and severally liable for the costs due to his fraudulent conduct.

The plaintiff employee brought a motion under Rule 21.01(1)(a) seeking a pre-trial determination that the termination provision in her employment agreement was unenforceable.

The defendant employer opposed the motion, arguing it was an inappropriate use of the rule.

The court dismissed the motion, finding that the interpretation of the termination provision was a question of mixed fact and law, not a pure question of law.

Furthermore, the court held that deciding the issue would not dispose of the action, substantially shorten the trial, or save costs, especially since the primary issue was whether the employer had just cause for termination.

The applicant Estate Trustees sought the court's opinion and advice on interpreting a clause in the testator's will that granted one of her sons an option to purchase her 'farming business' for a fixed price.

The son argued that the testator's rental of the farm property to him constituted carrying on the farming business.

Applying the armchair rule, the court found that the testator intended the phrase to mean the active farming business she and her late husband had previously operated, not the passive rental of land.

As the testator was not carrying on the active farming business at her death, the option to purchase was declared ineffective and the farm property fell into the residue of the estate.

The appellant obtained a British Columbia judgment against the respondent, which was registered in Ontario.

The appellant delayed enforcing the judgment for over six years because he believed there was little equity in the respondent's properties.

When the appellant sought leave to issue a writ of seizure and sale, the motion judge dismissed the motion, inferring that the appellant had waived his rights and that the respondent had detrimentally relied on the delay.

The Court of Appeal allowed the appeal, finding the motion judge made palpable and overriding errors.

The appellant's explanation for the delay was plausible, and the respondent could not have reasonably believed the appellant waived his right to enforce the $333,717.50 judgment, nor did she detrimentally rely on such a belief.

The moving party brought a motion for leave to appeal the order of the motion judge dated January 12, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $1,195.