Eric K. Gillespie

Neighbouring landowners brought actions seeking damages and injunctive relief arising from a proposed wind turbine development, alleging negligence, nuisance, trespass, and strict liability based on anticipated noise, health impacts, and property value loss.

The defendants moved for summary judgment dismissing the claims on the basis that the project had not yet received regulatory approval and had not been constructed.

The court held that the claims were premature because the alleged harms were speculative and no actionable tort had yet occurred.

Pure economic loss arising from public concern about a proposed development was not compensable absent proof of tortious conduct.

The plaintiffs also failed to meet the threshold for a quia timet injunction because there was no high probability that the alleged harms would occur given the ongoing regulatory approval process.

The defendant moved for summary judgment to strike the plaintiff's claims in strict liability, negligence, and nuisance arising from environmental contamination.

The strict liability claim was struck on consent.

The court held that the plaintiff's claims for damages other than property devaluation were statute-barred because the limitation period resumed when the class action abandoned those claims in 2002.

However, the claim for property devaluation was not statute-barred as the limitation period remained suspended until the plaintiff was excluded from the class in 2009.

The court found a genuine issue for trial regarding the remaining claims.

At a pre-hearing conference following a Divisional Court order remitting certain liability issues back to the Tribunal, the Tribunal determined procedural matters for the resumed hearing.

The Tribunal ordered that CNH would lead evidence first on the remitted liability issues, as they arose from CNH's appeal.

The Tribunal also ordered that the liability and damages phases of the hearing, which had previously been bifurcated, be re-joined to avoid unnecessary delay and prejudice, noting that the original reasons for bifurcation no longer existed.

The applicant sought judicial review of the Director of the Ministry of the Environment's decision to issue a Renewable Energy Approval for a wind facility.

The applicant argued the Director failed to comply with regulatory requirements and denied procedural fairness.

The Divisional Court dismissed the application, finding that the applicant lacked both personal and public interest standing.

In the alternative, the court held that the Director's decision to dispense with strict compliance with notice requirements was reasonable, and the consultation process met the common law requirements of procedural fairness.

In an environmental class action concerning historic nickel emissions from a refinery, the appellant challenged findings of nuisance, strict liability, and aggregate damages for alleged property value stigma following public concern about soil nickel levels.

The Court of Appeal held that a mere chemical alteration of soil, without detrimental effect on the land or its use, does not constitute actual, substantial, physical damage for private nuisance.

The court also held that Ontario law does not recognize strict liability based solely on allegedly extra-hazardous activity, and that the refinery operation was not a non-natural use within the Rylands v. Fletcher framework.

The claimants further failed to prove any compensable diminution in property values on a proper analysis of the valuation evidence.

The appeal was allowed and the action dismissed.

The moving party sought leave to appeal an Ontario Municipal Board (OMB) decision that approved a zoning by-law amendment permitting a 12-storey condominium development on a dynamic beach.

The moving party argued the development site fell within the Dynamic Beach Hazard, where development is prohibited.

The OMB accepted expert engineering evidence from the respondents that proposed shoreline protection works would adequately protect the site and mark the landward limit of the hazard.

The Divisional Court dismissed the motion for leave to appeal, finding that the OMB's preference for one expert's opinion over others was a finding of fact, not an error of law, and therefore did not meet the test for leave to appeal.

The applicant farm implement dealer brought a dispute against the respondent manufacturer regarding the end of their 19-year business relationship and warranty repair reimbursements.

The Tribunal divided the hearing into two phases, with Phase 1 focusing on liability.

The Tribunal found that the manufacturer did not breach section 18 of the Farm Implements Act regarding warranty reimbursements, as it paid the dealer in accordance with their existing agreement.

However, the Tribunal found that the manufacturer breached Ontario Regulation 123/06 by refusing to renew the dealership agreement, as the Regulation removed the manufacturer's contractual right to unilaterally non-renew and required that renewal approval not be unreasonably withheld.

The applicant brought an application for judicial review challenging the promulgation of a regulation prescribing minimum setback requirements for wind energy facilities.

The applicant argued the Minister of the Environment failed to consider the precautionary principle in the ministry's statement of environmental values, as required by section 11 of the Environmental Bill of Rights.

The Divisional Court dismissed the application, finding that the Minister's decision was protected by privative clauses and that the Minister had complied with the mandated process by considering all principles, including the precautionary principle, alongside other policy factors.

The Attorney General for Ontario brought a motion to strike the affidavits of Dr. Robert McMurtry, submitted by the responding party in an application for judicial review challenging wind turbine setback regulations.

The moving party argued the affidavits were irrelevant, contained hearsay, and that the affiant lacked expert qualifications.

The court declined to strike the affidavits in their entirety, leaving issues of relevance, hearsay, and expert qualifications to the panel hearing the merits.

However, the court struck references to studies post-dating the adoption of the regulation, as they could not have informed the regulatory decision.

The appellants, electors in the City of Vaughan, sought to appeal a Superior Court decision dismissing their application to remove the respondent mayor from office for an alleged conflict of interest.

The Divisional Court quashed the appeal, holding that the Municipal Conflict of Interest Act only provides a right of appeal from an order imposing a penalty under s. 10, not from a finding of no conflict.

The Court of Appeal upheld the Divisional Court's decision, confirming that the Act is a complete code and does not grant electors a right of appeal when a member is found not to be in a conflict of interest.

The applicant, a farm equipment dealer, requested a review of a Tribunal decision that dismissed its motion for production and discovery from a non-party trade association.

The applicant alleged the Tribunal made material errors of law and fact in applying the Rules of Civil Procedure and the Statutory Powers Procedure Act to deny the disclosure of confidential market share data.

The Vice Chair found no material error of law or fact in the original decision, concluding that the Tribunal properly exercised its discretion in protecting the non-party's confidential information and awarding costs against the applicant.

The request for review was denied.

The moving party brought a motion to quash two notices of appeal filed by the responding parties.

The responding parties sought to appeal a decision dismissing their application for an order that the moving party breached the Municipal Conflict of Interest Act.

The court held that the Act is a complete code and only provides a right of appeal for orders made under section 10.

Since no section 10 order was made, there was no jurisdiction to hear the appeal.

The motion to quash was granted and the notices of appeal were quashed.

The applicant farm equipment dealer brought a motion for production and discovery against a non-party trade association, seeking confidential market share data to challenge the respondent manufacturer's termination of their dealership agreement.

The Tribunal dismissed the motion, finding the requested data was protected by the common law privilege of confidentiality and the applicant failed to establish the relevance and importance of the documents.

The Tribunal also refused leave to examine the non-party for discovery, noting it would cause undue delay and expense.

The applicant was ordered to pay the non-party's costs of the motion.

The applicant sought a stay of an Ontario Municipal Board (OMB) hearing regarding minor variances granted to her neighbour, pending the determination of her application for judicial review.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicant would not suffer irreparable harm because the OMB hearing is a hearing de novo where the onus remains on the respondent.

The balance of convenience favoured proceeding with the OMB hearing.

The application for a stay was dismissed.

The appellant wife appealed a decision dismissing her motion for judgment to enforce minutes of settlement.

The motions judge had found that the parties entered into a binding written settlement but directed a trial to determine whether there was a subsequent oral agreement to vary the terms.

The Divisional Court allowed the appeal, holding that the motions judge erred in failing to enforce the binding written contract, especially since the husband had not brought a cross-motion regarding the alleged oral variation.

A concurring opinion noted that under s. 55(1) of the Family Law Act, any agreement to amend a domestic contract must be in writing, rendering the alleged oral variation unenforceable.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that dismissed its appeals against the City's official plan and zoning by-law amendments for the redevelopment of a hospital site.

The moving party opposed the demolition of the old hospital building, raising environmental, affordable housing, and heritage preservation concerns.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the Board's decision on any of the raised issues.

Following the plaintiff's successful appeal to certify an environmental claim as a class proceeding, the court determined the appropriate costs awards for the certification motion, the Divisional Court appeal, and the Court of Appeal.

The court held that the plaintiff was entitled to costs for all stages, imputing success at the certification motion stage despite the plaintiff having substantially narrowed the claim on appeal.

Recognizing the public interest nature of the environmental class action under s. 31(1) of the Class Proceedings Act, the court awarded the plaintiff $90,000 for the motion, $65,000 for the Divisional Court appeal, and $50,000 for the Court of Appeal.

The applicant, a citizens' group, sought judicial review of the City of Toronto and TTC's decision to construct a dedicated streetcar right-of-way on St. Clair Avenue West.

The applicant argued the project breached s. 24(1) of the Planning Act for failing to conform with the official plan and that the City failed to complete a proper environmental assessment.

The Divisional Court dismissed the application, finding the environmental assessment challenge was an impermissible collateral attack on the Minister's decision to refuse a 'bump up' request.

The Court also held that the project conformed with the transportation policies of the newly approved Official Plan.

The appellant sought to certify a class proceeding against the respondent for environmental contamination caused by a nickel refinery in Port Colborne.

The motion judge and Divisional Court dismissed the certification motion.

On appeal, the Court of Appeal allowed the appeal and certified the action.

The Court found that the appellant's narrowed claim for property devaluation met all certification requirements under the Class Proceedings Act, 1992, including identifiable class, common issues, preferable procedure, and representative plaintiff.

The appellant sought to certify a class proceeding against Inco Limited for environmental contamination in Port Colborne, alleging that nickel oxide emissions caused a decline in property values following a 2000 Ministry of the Environment announcement.

The motion judge and Divisional Court refused certification, finding the class arbitrary and individual issues overwhelming.

The Court of Appeal allowed the appeal and certified the action, holding that the narrowed claim focusing solely on property devaluation met all certification requirements under the Class Proceedings Act, including identifiable class, common issues, preferable procedure, and suitable representative plaintiff.