Frances P. Kiteley

The appellant, B.C.R. Construction Incorporated, appealed a trial judgment that awarded the respondent damages for breach of a real estate contract and dismissed the appellant's counterclaim regarding restrictive covenants.

The trial judge had found a binding agreement of purchase and sale, awarded damages for the cost differential and relocation of a house, and granted $100,000 in costs to the respondent due to the complexity of the dismissed counterclaim.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, legal conclusions, or costs award.

At a trial management conference in a long-running family law proceeding, the court addressed trial preparation, disclosure issues, expert reports, and scheduling.

The dispute involved claims for equalization of net family property, an unequal division of property, constructive trust, spousal support, residual child support issues, and costs.

The court emphasized the proportionality principle under Rule 2.09 of the Family Law Rules and rejected the applicant’s intention to call an excessive number of witnesses.

Directions were issued concerning the delivery of expert reports, appraisal access to the matrimonial home, disclosure of financial records, and the use of will-say statements.

The court set a 20‑day trial beginning May 3, 2015 and imposed procedural orders to ensure efficient trial management.

Following the dismissal of her application for judicial review, the applicant opposed an award of costs, arguing the case involved novel human rights issues of public importance.

The Divisional Court rejected this argument, finding the proceeding was a quest for personal vindication arising from fractious collective bargaining, not a public interest matter.

The court awarded the successful respondents $7,500 in costs, discounting their requested amount of $15,000 to exclude expenses related to the involvement of three intervenors.

Following a successful application for judicial review where the court found a denial of procedural fairness by the Town, the applicant sought costs on a full indemnity basis for the application and several related motions.

The Divisional Court held it lacked jurisdiction to award costs for the related motions or to set aside a previous costs order.

However, the court awarded the applicant substantial indemnity costs of $44,329.66 for the judicial review application, citing the Town's conduct that unnecessarily lengthened the proceeding and the denial of procedural fairness.

Following the dismissal of the applicant's application for judicial review, the court determined the costs to be awarded to the successful respondent university.

The applicant, who was self-represented, sought costs despite being entirely unsuccessful.

The court rejected the applicant's claim and awarded partial indemnity costs to the respondent, reducing the requested amount to reflect a more conventional award for an application of this type.

The respondent was awarded $18,805.89 inclusive of disbursements and HST.

The Wabauskang First Nation applied for judicial review of a decision by the Director of Mine Rehabilitation acknowledging a Production Closure Plan submitted by Rubicon Minerals Corporation for a gold mining project.

The First Nation argued that Ontario failed to fulfill its duty to consult and accommodate and improperly delegated this duty to the mining company.

The Divisional Court dismissed the application, finding that Ontario's assessment of the potential claims was reasonable, that it fulfilled its duty to consult and accommodate, and that it only delegated procedural aspects of the consultation to the proponent while retaining ultimate legal responsibility.

The husband brought a motion under rule 59.06(2) of the Rules of Civil Procedure seeking to set aside a consent order resolving equalization issues on the basis of alleged fraud and misrepresentation in the wife's net family property disclosure.

The court reviewed multiple challenged items, including the valuation of the matrimonial home, a condominium interest, alleged debts, vehicle valuation, omitted bank accounts, and household contents.

The court held that the husband failed to establish fraud, intentional misrepresentation, or lack of disclosure sufficient to set aside the consent order and had not exercised due diligence prior to entering the agreement.

The court also declined to exercise its discretionary authority under rule 59.06 due to delay and the husband's own incomplete disclosure.

Substantial indemnity costs were awarded against the husband due to unproven allegations of fraud.

Following the dismissal of the appellant's appeal, the successful respondents sought costs.

One respondent failed to bring a costs outline to the hearing as required by Rule 57.01(6) of the Rules of Civil Procedure, and subsequently claimed an amount three times higher than initially estimated.

The court penalized this non-compliance by awarding costs limited to the amount the appellant had estimated in its own costs outline.

In a family law proceeding involving disputes over custody and property equalization, the respondent brought a motion seeking sole custody of the child, removal of restrictions on withdrawals from certain bank accounts imposed by an earlier order, and other procedural relief.

The applicant brought a cross‑motion seeking compliance with outstanding undertakings and disclosure obligations.

The court found the earlier financial restrictions had unfairly limited the respondent’s ability to support the children and fund legal representation, and ordered the removal of the withdrawal limits.

Relying on the views and preferences of the nearly 16‑year‑old child conveyed through the Office of the Children’s Lawyer, the court granted the respondent permanent custody subject to specified access.

The court also directed steps toward resolution of the central dispute concerning the parties’ separation date and potential equalization claim.

The plaintiff sued the defendant for injuries sustained while bicycling on a recreational trail.

The defendant moved for summary judgment under s. 4 of the Occupiers' Liability Act, which limits liability to reckless disregard for recreational trails.

The motion judge dismissed the motion, finding s. 4 did not apply or created a rebuttable presumption requiring a trial.

On appeal, the Divisional Court allowed the appeal, holding the motion judge erred in law.

Applying the Hryniak standard, the court found no genuine issue for trial as there was no evidence the defendant acted with reckless disregard.

The appellants appealed an order dismissing their motion to strike the respondents' claim for intentional interference with economic relations.

The appellants argued the claim lacked sufficient particulars regarding unlawful conduct, actionable conduct against third parties, and damages.

The Divisional Court dismissed the appeal, finding that the statement of claim and amended particulars provided sufficient material facts to allow the appellants to respond, and that the pleading adequately disclosed a reasonable cause of action.

The appellant tavern appealed a License Appeal Tribunal decision finding it breached several provisions of the Liquor Licence Act and its Regulations, resulting in a 10-day licence suspension.

The charges arose after a group of patrons consumed a massive amount of alcohol in a short period, leading to intoxication, a violent altercation with staff, and a subsequent investigation.

The Divisional Court applied a correctness standard of review.

The court upheld findings that the appellant sold liquor to intoxicated persons, permitted drunkenness, permitted violent conduct, and failed to facilitate an inspection.

However, the court quashed findings that the appellant permitted practices encouraging immoderate consumption, committed a second violation of permitting drunkenness, and obstructed an investigation, finding errors of law in the tribunal's reasoning on those points.

The appeal was allowed in part.

The applicant sought judicial review of a development charges by-law passed by the respondent municipality, arguing that the municipality failed to provide adequate notice of public meetings, thereby denying procedural fairness.

The Divisional Court found that while the municipality failed to strictly comply with statutory notice requirements for the first meeting, procedural fairness was not denied.

However, the court held that the applicant was denied procedural fairness regarding the second meeting because the Mayor had explicitly promised further notice and an opportunity to be heard, which was not provided.

The court declined to quash the by-law but ordered the municipality to refund development charges paid by the applicant and other affected landowners during an 18-month transition period.

The defendants sought leave to appeal a costs order of $55,000 made against them following the dismissal of their motion for summary judgment.

They argued the motions judge erred by failing to specify the level of recovery and by not addressing their detailed challenges to the plaintiffs' costs outline.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions, no obvious error in the motions judge's exercise of discretion, and no issue of general importance that transcended the interests of the parties.

The defendants appealed an order of a Master dismissing their motion for a sealing order over various motion materials in a consolidated commercial dispute involving allegations of conspiracy, defamation, and misuse of confidential business information.

The appellants argued the Master misapplied the jurisprudence governing sealing orders and improperly rejected affidavit evidence under rule 39.01(4) of the Rules of Civil Procedure.

The court held that the Master committed no palpable and overriding error and correctly applied the open courts principle and the test articulated in Sierra Club of Canada v. Canada (Minister of Finance).

The evidence did not establish that the documents contained confidential or commercially sensitive information warranting the extraordinary remedy of a sealing order.

The appeal was dismissed.

The moving parties and responding parties both brought motions under s. 21(5) of the Courts of Justice Act to vary or set aside an earlier order that denied a stay of a Renewable Energy Approval but granted an injunction subject to an undertaking as to damages.

The Divisional Court held that Rule 63.02 does not confer jurisdiction to stay a Renewable Energy Approval, as it is not an 'order' within the meaning of the rule.

The court found no error in the motion judge's exercise of inherent jurisdiction to grant injunctive relief under Rule 40 instead.

Both the motion and cross-motion were dismissed.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Defence and to commence a cross-claim and counterclaim.

The proposed amendments alleged that a settlement agreement between the plaintiff and other defendants constituted a breach of a prior agreement.

The Divisional Court upheld the Master's decision, finding that the Master correctly concluded the proposed amendments were not tenable in law based on a review of the settlement agreement.

The applicant, a medical resident, sought judicial review of a decision by the university's Senate Appeals Committee that upheld her placement on academic probation due to poor performance and patient safety concerns.

The applicant argued that the committee violated procedural fairness and that its decision was unreasonable.

The Divisional Court dismissed the application, finding that the committee provided a high degree of procedural fairness, cured any minor procedural defects through a de novo hearing, and reached a reasonable decision within its academic expertise.

Following the dismissal of the applicant's motion for public and private interest standing and the dismissal of the Notice of Application, the successful respondents sought costs.

The applicant, who was self-represented, opposed the costs but made no specific submissions on the costs outlines, instead repeating the merits of his dismissed claims.

The court found the applicant's conduct caused unnecessary delay and expense, and awarded partial indemnity costs of $4,000 to the Crown and $4,324.87 to Metrolinx.

Following earlier reasons setting aside a Report and Certificate of Assessment and directing a new assessment, the court considered competing submissions on costs.

Although the clients succeeded on the issue of lack of service of the assessment hearing, the court found their evidence unreliable and declined to award them costs.

The court determined there was no bona fide dispute regarding the retainer and that the creditor had been wholly successful on that issue.

The court further criticized the clients for strategically amending their motion after the creditor refused to consent to the relief sought.

A modest costs award was ordered against two of the clients.