Earl Asher Cherniak

The Town of Oakville sought to designate Glen Abbey golf course as a cultural heritage property.

Clublink, the owner, applied under section 34 of the Ontario Heritage Act to demolish and remove the golf course.

The Town argued the application should proceed under section 33, which provides different procedural protections and appeal routes.

The central issue was whether a golf course constitutes a "structure" within the meaning of section 34.

The Court of Appeal held that Glen Abbey, being a product of significant construction and engineering comprising constituent parts intended to remain permanently on the property, was a structure within section 34.

The purposive and contextual interpretation of the statute, considering its legislative history and the evolution of municipal heritage planning beyond a "building-centric" paradigm, supported this conclusion.

The applicant, Clublink, owned the Glen Abbey Golf Course in Oakville and sought to redevelop it into a residential and mixed-use community.

The Town designated Glen Abbey as a cultural heritage property and passed five related by-laws, including a Cultural Heritage Landscape Conservation Plan By-law, authorizing the preparation of a conservation plan that required Clublink to seek Town approval for alterations to the golf course.

The application judge quashed all five by-laws and the conservation plan, finding them ultra vires, passed in bad faith, and void for vagueness.

The Court of Appeal allowed the appeal in part, upholding the validity of the five by-laws but quashing the conservation plan resolution on the basis that it effectively compelled Clublink to continue operating the golf course as a service, contrary to section 11(8)5 of the Municipal Act.

An appeal concerning the constitutionality of security screening measures implemented at police headquarters.

The chief of police instituted a security protocol requiring all persons entering the building to pass through metal detection and bag screening.

A resident who regularly attended public meetings of the police services board refused to submit to screening and was denied entry.

The application judge found the security protocol violated freedom of expression rights and was not prescribed by law.

The appellate court reversed, holding that while the protocol limited freedom of expression, it was prescribed by law through the occupier's common law powers and the statutory duty to ensure safety under the Occupiers' Liability Act, and was justified as a reasonable limit under the Charter.

The applicants, owners of the Glen Abbey Golf Course, brought an application to quash five municipal by-laws enacted by the respondent Town.

The by-laws aimed to preserve the property's use as a golf course following its designation as a cultural heritage property.

The Superior Court of Justice allowed the application and quashed the by-laws, finding them ultra vires the Town's authority under the Municipal Act, as they improperly required the provision of services related to recreation and culture.

The court also found the by-laws were enacted in bad faith to thwart the applicants' redevelopment plans and were void for vagueness.

The Town of Oakville designated the Glen Abbey Golf Course as a heritage site under the Ontario Heritage Act (OHA).

Clublink, the owner, sought to demolish and redevelop the property, applying under s. 34(1) of the OHA.

The Town refused to process this application, arguing that the golf course features were not "buildings or structures" within the meaning of s. 34, and that Clublink should instead apply under s. 33, which provides for a non-binding appeal route.

The court was asked to determine the correct procedural route for Clublink's proposed changes.

The court found that the Glen Abbey Golf Course, including its engineered features such as tees, greens, sand traps, and irrigation systems, constitutes "structures" for the purposes of s. 34 of the OHA.

Consequently, Clublink has the right to make an application to the Town under s. 34(1), and the Town was ordered to process Clublink’s application.

The appellant brought a proposed class action asserting statutory claims for secondary market misrepresentation under Part XXIII.1 of the Securities Act and common law negligent misrepresentation against a foreign banking corporation.

The motion judge dismissed the statutory claim and stayed the common law claim, finding that Ontario courts lacked jurisdiction simpliciter and that Ontario was forum non conveniens.

The Court of Appeal dismissed the jurisdiction appeal but allowed the costs appeal in part, reducing the costs award from $1,000,455.22 to $800,000.

The court held that the common law test for "real and substantial connection" applies to the definition of "responsible issuer" under the Securities Act, and that the defendant did not have such a connection to Ontario merely because the plaintiff accessed disclosure documents from his home computer in Ontario.

The Applicants, ICP and JCP, each sought the appointment of an arbitrator under the Arbitrations Act, 1991, for disputes arising from a share offer and acceptance.

The court addressed whether the arbitrations should be consolidated, the appropriate size of the arbitration panel (single vs. three arbitrators), and the composition of the panel, including issues of res judicata regarding a prior ruling on panel size and reasonable apprehension of bias concerning a nominated arbitrator.

The court determined that separate arbitrations were required for QSA and PSA disputes, that a three-member panel was intended by the QSA, and appointed Mr. Ferrier and Mr. Scott to the QSA panel, rejecting Mr. Cunningham due to apprehension of bias.

A lawyer appealed a professional misconduct finding based on in-court incivility during a securities prosecution.

The majority held that reasonableness review applied and accepted the disciplinary framework, but found its application unreasonable on the record.

The Court concluded the allegations were made in good faith with sufficient factual foundation in context.

The appeal was allowed and the complaints were dismissed.

On appeal from a Divisional Court decision, the Court of Appeal considered whether the Ontario Municipal Board (OMB) had jurisdiction to impose a 25 percent cap on the alternative parkland dedication requirement under section 42 of the Planning Act.

The Town of Richmond Hill had adopted an Official Plan policy allowing for parkland dedication at a rate of one hectare per 300 dwelling units.

Developers challenged this policy, and the OMB imposed a 25 percent cap on the amount of land required to be conveyed.

The Divisional Court set aside the cap, finding the OMB lacked authority to impose it.

The Court of Appeal upheld this decision, holding that the legislature has given municipalities exclusive authority to determine the rate under section 42(3), subject only to the requirement that an Official Plan contain specific policies dealing with parkland provision and the use of the alternative requirement.

The OMB's role is limited to reviewing whether such policies are appropriate and accord with provincial policies, not to set or cap the rate itself.

The appellants, estate trustees of the testator's estate, appealed the trial judge's finding that the testator lacked testamentary capacity when executing two wills dated August 16, 2010 and September 8, 2010.

The trial judge found the testator was unaware of the nature and extent of his assets, did not remember persons he might be expected to benefit, and did not understand claims that could be made by excluded persons.

The appellants also sought leave to appeal the costs award, which required the estate trustees personally to pay costs rather than having them borne by the estate.

The Court of Appeal found no palpable errors of fact and upheld the trial judge's findings on capacity and costs.

This is a costs endorsement following an appeal decision.

The appellant achieved only partial success on appeal.

The court reduced the respondent's costs award from $180,000 to $135,000 (a 25% reduction), finding that while the respondent remained entitled to costs of the application, some reduction was appropriate given the appellant's partial success and the disputed issues on appeal.

The court also declined to award costs to the appellant for his motion for a stay of the application judge's decision, finding the claimed costs excessive and the motion inappropriate as it sought multiple forms of relief beyond the stay order.

Appeal from an application judge's decision regarding the division of property following the breakdown of a common law relationship.

The appellant sought sole beneficial ownership of a jointly-titled residential property (Brookdale Avenue) or, alternatively, a credit for his repayment of a joint line of credit used to finance its purchase.

The Court of Appeal upheld the finding that the respondent held a 50 per cent legal and beneficial interest in the property, but allowed the appeal in part by granting the appellant a $500,000 credit on division of sale proceeds for his repayment of the respondent's share of the joint debt.

The appellant suffered a crush injury to his forearm requiring amputation when his arm became caught in a loop of rope during a tug-of-war event at a campground owned by the respondent Marina.

The motion judge granted summary judgment dismissing the action against the Marina and its principal, excluding key discovery evidence on technical grounds.

The Court of Appeal allowed the appeal, finding that the motion judge erred in excluding discovery evidence of third parties and in concluding there was no genuine issue requiring trial regarding vicarious liability of the Marina and its principal for the actions of the principal's son, who had provided the defective rope.

The infant respondent was struck by a vehicle while crossing a street on his way to school.

The trial judge found the appellant municipality liable because the accident occurred during the time a crossing guard was required to be present but was absent.

The trial judge also found the infant respondent was not contributorily negligent.

The municipality appealed, challenging the trial judge's factual findings regarding the timing of the accident and the assessment of contributory negligence.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence or application of the standard of care for children.

The appellant, a lawyer, appealed a finding of professional misconduct by the Law Society Appeal Panel related to his uncivil in-court conduct during a lengthy securities fraud trial.

The appellant argued that trial judges, not the Law Society, should oversee in-court conduct and that the Appeal Panel's test for incivility failed to protect zealous advocacy.

The Court of Appeal held that the reasonableness standard of review applied to the Appeal Panel's decision.

The Court found that the Law Society has the statutory authority to discipline lawyers for in-court incivility, independent of a trial judge's actions.

The Court upheld the Appeal Panel's test for incivility and its finding that the appellant's repeated, unfounded allegations of prosecutorial misconduct constituted professional misconduct.

The appeal was dismissed.

The Court of Appeal issued a costs endorsement following its decision on the main appeal.

In accordance with the parties' agreement, the court ordered that the costs of the appeal be paid out of the estate of the deceased.

The successful appellant was awarded $46,000, and the respondents were awarded $25,000.

The deceased left a will that expressly disinherited his daughter, stating she had had no communication with him for several years.

The daughter challenged the will, adducing extrinsic evidence that her father's actual motive was racially discriminatory because she had a child with a white man.

The application judge admitted the evidence and set aside the will on public policy grounds.

The Court of Appeal allowed the appeal, holding that third-party extrinsic evidence of a testator's motive is inadmissible when the will is clear and unambiguous.

Furthermore, the court held that the public policy doctrine cannot be used to void an unconditional, private testamentary bequest based on a testator's alleged discriminatory motive, affirming the principle of testamentary freedom.

The appellant law firm performed collection work for the respondent bank under a written agreement.

Following the termination of the agreement, the parties disputed the interpretation of a provision regarding invoicing for services performed up to the termination date.

The motion judge agreed with the respondent's interpretation and granted summary judgment dismissing the action.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error or extricable question of law in the motion judge's interpretation of the contract.

The court also held that the general duty of honesty in contractual performance recognized in Bhasin v. Hrynew did not affect the interpretation.

The appellant lawyer appealed a decision of the Law Society Appeal Panel finding him guilty of professional misconduct for incivility during a criminal trial.

The Appeal Panel had reduced his penalty to a one-month suspension and $200,000 in costs.

The Divisional Court dismissed the appeal, finding that the Law Society has jurisdiction to discipline lawyers for in-court conduct without intruding on judicial independence.

The Court articulated the test for when incivility becomes professional misconduct, requiring that the conduct undermines or has the potential to undermine the proper administration of justice.

The Court found the Appeal Panel's application of the test and the resulting penalty and costs orders to be reasonable.

The Law Society's cross-appeal regarding the evidentiary use of prior judicial comments was also dismissed.

The appellants, estate trustees of the deceased, appealed a trial judgment granting dependants' relief to the respondent, the deceased's common-law spouse.

The deceased had left a $17 million estate but excluded the respondent from her wills following a corporate reorganization.

The trial judge awarded the respondent a property, $100,000 per year for life, and $50,000 every five years for a vehicle.

The Divisional Court dismissed the appeal, finding no error in the trial judge's conclusion that the deceased failed to make adequate provision for the respondent, nor in her assessment of the amount and duration of support or the substantial indemnity costs award.