Frank N. Marrocco

This is a costs endorsement for three inter-related appeals (C66633, C64430, and C64479).

The parties resolved costs for appeal C64479.

For appeals C64430 and C66633, the Court found that success was mixed, and therefore, there would be no order as to costs for those appeals.

This is an appeal from a jury trial in a personal injury case arising from a single-vehicle crash.

The plaintiffs (Tuffnail family) were injured, and liability was apportioned among the driver (Meekes), the host (Bolton), the bartender (Coulthard), and the plaintiff (Tuffnail).

Multiple parties appealed the post-verdict rulings.

The Court of Appeal found that Coulthard was "jointly liable" with Meekes for the purposes of OPCF 44R, allowing State Farm to deduct Coulthard's insurance limits, thereby reducing State Farm's payout to the Tuffnails.

The court clarified that State Farm must share subrogation recoveries with the Tuffnails on a pro rata basis until the Tuffnails receive full indemnification under the judgment, correcting the trial judge's order that limited it to the OPCF 44R endorsement.

The court upheld the trial judge's decision on Coulthard's several liability to Bolton, rejecting the argument for reapportionment of fault without Meekes.

The court found the trial judge erred in awarding prejudgment interest higher than the bank rate, reducing it to 1.3% as market rates did not justify a higher rate and the "expectation" factor was inappropriate.

Finally, the court upheld the denial of Coulthard's request to amend pleadings to add a limitation defence post-verdict due to non-compensable prejudice.

The appellants appealed an order dismissing their application under the Substitute Decisions Act, 1992 for leave to require the respondents, who were attorneys for property for their parents, to pass their accounts.

The application judge found no direct allegation of misfeasance or wrongdoing and declined to exercise his discretion to grant leave.

The Court of Appeal found no error in principle in the application judge's exercise of discretion, noting the lack of significant concerns regarding the management of the grantors' affairs, and dismissed the appeal.

The appellants appealed a summary judgment in a mortgage enforcement action ordering them to pay over $626,000 and deliver possession of a mortgaged rental property.

The appellants failed to appear for the appeal, which proceeded on written materials after multiple adjournment requests were denied.

The appellants argued the second mortgage was void ab initio because the respondent allegedly knew the first mortgage was in default or failed to conduct due diligence.

The Court of Appeal dismissed the appeal, finding it was the appellants' responsibility to ensure the first mortgage was in good standing.

The respondent purchased a transformer from the appellant, which failed due to a defective tap changer.

The respondent sued for breach of contract and was granted summary judgment based on the 'fit for purpose' warranty in the Sale of Goods Act.

The appellant appealed, arguing that summary judgment would prejudice its cross-claim against the third-party manufacturer.

The Court of Appeal dismissed the appeal, finding no triable issue regarding the contract breach and no risk of inconsistent findings of fact in the remaining cross-claims.

The appellant appealed a motion judge's stay of crossclaims against its co-defendant, ABB Inc., arising from a defective tap changer.

The motion judge stayed the crossclaims based on the 'Orgalime' standard terms and conditions, which included an arbitration clause and excluded liability for consequential loss.

The appellant argued that ABB failed to specifically bring these clauses to its attention, relying on Tilden Rent-a-Car.

The Court of Appeal dismissed the appeal, finding that the appellant was a sophisticated corporate consumer and could reasonably be expected to have reviewed the terms referenced in the contractual documents.

The plaintiffs appealed a motion judge's order refusing to validate late service of their Statement of Claim.

The plaintiffs had made diligent but unsuccessful efforts to serve the evasive defendant within the six-month period.

The motion judge had found on separate motions that neither party proved their case regarding prejudice.

The Court of Appeal allowed the appeal, holding that the motion judge's findings were irreconcilable and that the plaintiffs had discharged their onus to show no prejudice, especially since the defendant provided no details of any alleged prejudice.

Service was validated.

The appellants (Roksana Hajrizi and her parents) appealed the dismissal of their action against the Ottawa-Carleton District School Board, a vice-principal, and another student, and sought leave to appeal the costs order.

The original action stemmed from an incident in 2009, leading to claims of misfeasance, intentional infliction of mental suffering, negligence, defamation, and conspiracy.

The trial judge dismissed the claims, finding Ms. Hajrizi's testimony not credible, and awarded substantial indemnity costs against the parents, with Ms. Hajrizi liable for a portion.

The Court of Appeal found no basis to interfere with the trial judge's findings, including credibility, and upheld the dismissal of the action.

Leave to appeal costs was denied, as the trial judge's reasoning for awarding costs against the parents and the quantum were deemed reasonable and proportional.

The applicant, a police officer, was found guilty of misconduct under the Police Services Act for unlawful arrest and excessive force during the G20 summit.

The Ontario Civilian Police Commission upheld the misconduct findings but reduced the penalty to a one-month demotion.

The applicant sought judicial review, arguing the Commission erred in its standard of review and treatment of the Hearing Officer's credibility findings.

The Divisional Court dismissed the application, finding the Commission's decision was reasonable and properly deferred to the Hearing Officer's factual and credibility determinations.

The appellant appealed a Master's decision staying its Ontario action on the basis that Nova Scotia was the clearly more appropriate forum (forum non conveniens).

The appellant argued the Master erred by ignoring a scheduled summary judgment motion, misconstruing a scheduling order, and conflating jurisdiction simpliciter with forum non conveniens.

The Divisional Court dismissed the appeal, finding the Master made no errors of law or palpable and overriding errors of fact in his holistic assessment of the connecting factors.

The respondents brought a motion to quash an application for judicial review on the basis of mootness.

The underlying application challenged the Minister's decision to invoke an exception under the Environmental Bill of Rights, bypassing public consultation for revoking the cap and trade program by claiming the recent provincial election was a substantially equivalent process.

The Divisional Court dismissed the motion to quash, finding that the scope of the Minister's exception power remains a live controversy despite the subsequent repeal of the relevant legislation.

The court further held that even if the matter were moot, it would exercise its discretion to hear the application to provide clarity on the statutory exemption.

The appellants, estate trustees for two deceased individuals who executed mirror Primary and Secondary Wills, appealed a decision denying their applications for Certificates of Appointment of Estate Trustee.

The application judge had held that a will is a trust and that the allocation clauses in the Primary Wills failed the 'three certainties' test for trusts due to uncertainty of subject-matter.

The Divisional Court allowed the appeal, finding that a will is not a trust and is not subject to the three certainties.

The Court further held that even if the three certainties applied, the allocation clauses provided an objective basis to ascertain the subject-matter, satisfying the certainty requirement.

The Court ordered the issuance of the requested Certificates of Appointment.

The appellant employer appealed a Small Claims Court trial judgment.

The original trial judge became ill and could not render a decision.

The Local Administrative Judge advised the parties that a new judge would issue a written judgment based on transcripts if all parties consented; otherwise, a motion for rehearing was required.

The respondent consented, but the appellant did not respond.

Despite the lack of consent or a motion, a deputy judge issued a decision in favour of the respondent.

The Divisional Court allowed the appeal, finding the appellant was denied the opportunity to be heard on the procedure for rehearing, and ordered a new trial before a different deputy judge.

The appellant franchisor appealed a Master's order staying its application for declarations regarding the termination of a franchise agreement.

The Master had concluded that Ontario lacked jurisdiction or, alternatively, that Saskatchewan was the clearly more appropriate forum.

The Divisional Court upheld the Master's decision, finding no palpable and overriding error in the factual findings regarding the franchisor's regional office in Saskatchewan.

The court also affirmed that the territorial connection to Ontario was weak, as the conduct underlying the dispute occurred in Saskatchewan, where the respondents operated the franchise.

The appeal was dismissed.

The City of Toronto appealed a decision of the Ontario Municipal Board (now LPAT) which adjourned the hearing of appeals regarding Official Plan Amendment 258 (OPA 258) until the City enacted a Development Permit System (DPS) by-law.

The City argued the Board lacked jurisdiction to effectively order the passage of a by-law and denied the City its statutory right to a hearing under the Planning Act.

The Divisional Court dismissed the appeal, finding the Board did not order the passage of a by-law but reasonably exercised its procedural discretion to adjourn the hearing to ensure it had the necessary evidence to properly assess the planning merits of OPA 258.

The landlord appealed decisions of the Landlord and Tenant Board finding that the Residential Tenancies Act applied to various rental units, despite the parties having signed commercial lease agreements.

The LTB found that the true nature of the tenancies was residential, based on representations by the landlord's superintendents and the actual use of the units.

The Divisional Court dismissed the appeal, holding that the LTB has exclusive jurisdiction to determine whether a premise is a rental unit and to ascertain the real substance of the transaction under section 202 of the Act, and that these were findings of fact not reviewable on appeal.

The landlords appealed a Landlord and Tenant Board decision finding that the Residential Tenancies Act applied to a unit leased under a commercial lease agreement.

The tenant used the unit primarily as a living space and incidentally for creating artwork.

The Divisional Court dismissed the appeal, holding that the Board reasonably applied section 202 of the Act to ascertain the true nature of the tenancy, and that the Board's factual findings regarding the predominant use of the unit were not reviewable on an appeal restricted to questions of law.

The applicants sought leave to appeal an interlocutory order dismissing their motion to dismiss the action for delay.

The respondents failed to file a responding factum, which was over four months late.

The Divisional Court clarified that Rule 61.03.1 applies to motions for leave to appeal from an interlocutory order of a Superior Court judge, requiring the responding factum to be filed within 25 days after service of the moving party's record.

The court proceeded without the respondents' materials and dismissed the motion for leave to appeal, finding the applicants failed to meet the test under Rule 62.02(4).

The landlord appealed a Landlord and Tenant Board decision dismissing his application to evict the tenants for personal use.

The Board found that although the landlord had a good faith intention to occupy the unit, the eviction application was brought because the tenants refused an unlawful rent increase, triggering the mandatory refusal provision under s. 83(3)(c) of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, holding that the Board's conclusion was a factual determination supported by the evidence and that no procedural unfairness occurred.

The moving parties, a group of telecommunications companies, brought a motion for directions seeking disclosure and production of internal documents and communications from the Ontario Energy Board to form the record for their challenge of a new Pole Attachment Charge.

The court applied the 'meaningful judicial review test' to determine the required contents of the record, as the Statutory Powers Procedure Act did not apply.

The court concluded that the requested documents, including drafts, internal correspondence, and identities of report authors, were not necessary for a meaningful review of the moving parties' complaints regarding process, burden of proof, and ignored submissions.

The motion for disclosure and production was dismissed.