Evelyn M. ten Cate

The appellant landlord appealed an order of the Landlord and Tenant Board finding she served an N12 notice of termination in bad faith and ordering her to pay $28,864.15.

The Divisional Court dismissed the appeal, holding that the Board correctly considered post-notice conduct, appropriately applied the presumption of bad faith, and provided adequate reasons.

The Court also found that while the use of the tenants' son as an interpreter was imperfect, the hearing remained procedurally fair overall.

The applicant creditors sought a bankruptcy order against the respondent debtor after she failed to pay a mortgage on a rental property and an unsatisfied judgment of over $255,000.

The respondent argued she had sufficient equity in her properties but needed time to resolve a large tax debt with the CRA.

The court found that the respondent had committed an act of bankruptcy by ceasing to meet her liabilities generally as they became due, noting the unpaid mortgage, the judgment, and a nearly $1 million CRA lien.

The court adjudged the respondent bankrupt and appointed a trustee.

The appellants, former tenants, appealed a Landlord and Tenant Board (LTB) decision dismissing their request for a review of an order granting the landlords $12,349.03 in compensation.

The appellants argued they were denied procedural fairness because they never received notice of the hearing.

The Divisional Court allowed the appeal, finding that the LTB review member erred in law by concluding the appellants should have monitored the LTB portal to discover the hearing date.

The Court held that the Statutory Powers Procedure Act guarantees reasonable notice of a hearing, and the responsibility for providing notice cannot be shifted to the parties.

The LTB order was set aside and the matter remitted for a new hearing.

Appeal under s. 80 of the Health Care Consent Act, 1996 from a Consent and Capacity Board decision confirming a health practitioner's finding that the appellant was incapable with respect to proposed treatment in the classes of antipsychotic medications, mood stabilizers, and anxiolytics.

The appellant argued the Board erred by accepting a seven-day gap between the psychiatrist's last capacity assessment and the hearing, misapprehending a social worker's note as a clinical assessment, and failing to carefully weigh hearsay.

The court found the Board applied the correct legal test from Starson, acknowledged the presumption of capacity and onus on the health practitioner, and reasonably concluded that incapacity persisted as of the hearing date based on enduring lack of insight and corroborative clinical entries.

Appeal dismissed and Board's decision confirmed.

The defendants brought motions to strike the self-represented plaintiff veterinarian's statement of claim arising from disciplinary proceedings by the College of Veterinarians of Ontario.

The plaintiff alleged abuse of process, malicious prosecution, conspiracy, Charter breaches, and defamation related to a nearly two-decade disciplinary history.

The court struck the claim without leave to amend, finding it was a collateral attack on prior proceedings, that the College enjoyed statutory immunity under s. 45(1) of the Veterinarians Act absent particularized bad faith, and that the claim against the Attorney General was a nullity for failure to provide 60 days' notice under the Crown Liability and Proceedings Act.

The claims against the Minister of Agriculture disclosed no reasonable cause of action.

Following a prior motion decision, the court determined the appropriate costs award.

The successful moving party sought partial indemnity costs after prevailing on the motion.

The responding party argued that any costs should instead be borne by a third party municipality, alleging administrative error and a breached undertaking not to take a position on the motion.

The court found the municipality had merely consented to the motion and had filed no evidence or submissions beyond that consent.

As there was no pleading supporting liability against the municipality, the court ordered the unsuccessful responding party to pay partial indemnity costs to the moving party.

On a pre-trial Charter application, the moving party sought exclusion of statements and physical evidence seized from a BMW, alleging breaches of ss. 7, 8, 9 and 10(b).

The court found a psychological detention, breaches of counsel and silence rights, and an unreasonable search in the manner police compelled production of a key fob.

Applying the Grant framework, the court excluded the moving party’s verbal and non-verbal statements, including the key-fob handover.

The court admitted the drugs, firearm, ammunition, and related physical evidence because they were independently discoverable under a valid vehicle warrant.

The application was allowed in part.

In supplemental reasons following an earlier decision, the court addressed the priority of payment and subrogation rights between OPCF 44R insurers and an umbrella policy (PULP) insurer, following the Court of Appeal's decision in Rodriguez-Vergara v. Lamoureux.

The court held that the at-fault drivers' automobile policy is primary, followed by the respective OPCF 44R endorsements, and finally the PULP.

The court also held that the OPCF 44R insurers have no right of subrogation against the umbrella insurer, and their subrogation rights against the at-fault drivers directly are limited to the amount by which their payment exceeds the combined automobile and excess policy limits.

The defendant brought a motion to rectify the land registry record under section 159 of the Land Titles Act.

The parties are abutting landowners, and the defendant's property requires an easement over the plaintiff's land for access.

The Committee of Adjustment had previously granted a permanent easement as a condition of severing the land, but a temporary one-year easement was mistakenly registered on title following a private agreement between the parties.

The court held that the Certificate of Consent under the Planning Act does not immunize the resulting transfer from rectification where the registered instrument does not match the approved instrument.

The motion was granted, and the title was ordered rectified to reflect a permanent easement.

The defendant municipality appealed an interlocutory order of an Associate Justice granting the plaintiff leave under Rule 31.03(2)(b) to conduct a limited, one-hour examination for discovery of a second corporate representative, supplemented by up to two pages of written questions.

The appellant argued the Associate Justice committed palpable and overriding errors by relying on a non-existent agreement between the parties regarding a hybrid examination process and by misapplying the strict test for examining a second corporate representative.

The court found the Associate Justice correctly applied the test from Fischer v. IG Investment Management Ltd., made findings grounded in the record, and fashioned a proportionate remedy addressing discovery incompleteness.

The appeal was dismissed.

The plaintiffs brought motions to set aside Registrar's dismissal orders issued in May 2024 in two related inmate assault and conditions of confinement actions commenced in 2015.

Applying the Piedrahita framework, the court found the delay was adequately explained by consent timetables, pandemic disruptions, and counsel's early-2024 practice upheaval.

The motions were brought promptly after the dismissals became known, and the Crown did not demonstrate significant prejudice precluding a fair trial, particularly given its own participation in setting the litigation pace.

The dismissal orders were set aside and the actions reinstated on a strict enforceable timetable.

This standalone costs decision followed reasons continuing an interim injunction and certificate of pending litigation until trial.

The successful moving parties sought partial indemnity costs and disbursements, while the responding parties argued costs should be in the cause or reduced.

Applying the ordinary rule that costs follow the result and the discretion applicable to interlocutory injunction proceedings, the court fixed costs itself rather than reserving all costs to trial.

The court found the moving parties were largely successful and awarded reduced partial indemnity costs plus limited disbursements, while reserving transcript-cost issues to the trial judge.

The plaintiff sought summary judgment for damages arising from the defendants' breach of an agreement of purchase and sale for a home in Ilderton, Ontario.

The defendants refused to close, alleging the home was heavily saturated with cigarette smoke that was not disclosed.

The court found no reliable evidence of smoke, no representations made by the plaintiff regarding smoking, and no objectively reasonable danger posed by any smoke present.

The court granted summary judgment to the plaintiff, awarding damages of $280,612.08 plus prejudgment interest, finding no genuine issue requiring trial.

The City of London brought a motion to dismiss an application by Global Waste Disposal London Ltd. seeking to quash By-law No. S-6225-109 on grounds of unreasonableness, arbitrariness, and bad faith.

The City alternatively sought conversion of the application to an action.

The court rejected both requests, finding the application was not moot as a live controversy remained regarding the applicant's ability to connect to municipal storm sewers, and that the issues were suitable for determination through the application process rather than conversion to trial.

Eight consolidated actions arising from a motor vehicle accident on November 30, 2021, in London, Ontario, in which the defendant driver failed to stop at a red light and struck members of the London 120th Brownies, killing one child and injuring several others.

The court determined whether the defendants' personal liability umbrella policy constituted a motor vehicle liability policy under the Insurance Act and the OPCF 44R Family Protection Coverage endorsement.

The court held that the umbrella policy was not a motor vehicle liability policy and therefore the defendants were inadequately insured motorists.

The plaintiffs were entitled to access their own OPCF 44R coverage, with the aggregate available insurance limits of $2.3 million to be divided pro rata among all eligible claimants.

This is a decision on costs following a judgment in which both parties received monetary awards, but the net result favoured College Grain Inc. The court considered the parties’ offers to settle, the proportionality of costs, and the policy behind the Simplified Rules.

Ultimately, the court awarded College Grain Inc. $50,000 plus HST for fees and $35,886.52 for disbursements, for a total of $92,386.52, to be paid by Wilhelm Concrete.

The court considered costs following motions regarding possession of property and a certificate of pending litigation.

The Plaintiff sought full indemnity costs, while the Defendant argued for each party to bear their own costs or for a reduction.

The court reviewed the Bill of Costs, found the Plaintiff’s claim excessive, and awarded a reduced sum of $33,250, including disbursements, to the Plaintiff.

The decision discusses the principles for awarding costs, including contractual entitlements and the requirement that costs be fair and reasonable.

The plaintiff contractor sued for unpaid invoices relating to the construction of concrete grain silos.

The defendant grain company counterclaimed for damages, alleging construction deficiencies caused water infiltration and grain spoilage.

The court found that the contractor's defective workmanship caused water infiltration in two silos.

The court awarded the defendant damages for repair costs, increased labour, and future repairs, while dismissing claims for spoiled grain due to lack of documentary evidence.

The court also held that the defendant's counterclaim was not statute-barred because the limitation period did not commence while the contractor was actively attempting to repair the defects.

The plaintiff was awarded its unpaid invoices, but the individual defendant was found not personally liable.

The court considered whether to depart from the statutory prejudgment interest (PJI) rate under the Courts of Justice Act in favour of a higher rate, following a breach of an agreement of purchase and sale.

The plaintiff sought a higher PJI rate based on market returns and the circumstances of the case.

The court found that the statutory rate undercompensated the plaintiff and, after reviewing the relevant statutory factors and case law, exercised its discretion to award a higher average rate of 3.17%.

The court considered competing motions regarding possession of a commercial property and the discharge of a certificate of pending litigation (CPL) in the context of a mortgage default.

The Plaintiff, a holding company, sought to set aside an ex parte order granting the CPL and to be declared in possession of the property.

The Defendant argued an oral agreement allowed indefinite interest-only payments and challenged the Plaintiff’s right to possession.

The court found the Defendant failed to make full and frank disclosure on the ex parte motion, that the Plaintiff was entitled to possession under the mortgage and the Mortgages Act, and that the CPL should be vacated.

The Plaintiff’s motion was granted and the Defendant’s dismissed.