Frank N. Marrocco

The appellant appealed a motion judge's order granting an adjournment of a summary judgment motion on the condition that the respondent's application for divorce be severed from the corollary issues.

The appellant argued the motion judge failed to consider whether the severance would disadvantage her under Rule 12(6) of the Family Law Rules.

The Divisional Court dismissed the appeal, finding the motion judge properly balanced the interests of both parties and that there was no evidence the appellant would be disadvantaged by the severance, given the terms of the parties' separation agreement.

The applicant wife sought to serve the respondent husband in China with a family law application.

She obtained an ex parte order validating service without complying with the Hague Service Convention, arguing the Family Law Rules provided a complete code for service.

The husband appealed.

The Divisional Court allowed the appeal, holding that the Family Law Rules do not adequately cover international service and do not clearly rebut the presumption of conformity with international law.

Therefore, Rule 17.05 of the Rules of Civil Procedure applies, making compliance with the Hague Service Convention mandatory for family law proceedings.

The respondent successfully moved for summary judgment granting an order for the immediate partition and sale of a jointly-owned property.

The appellant, who had been critically injured in a hammer attack allegedly perpetrated by the respondent, appealed the order.

The Divisional Court allowed the appeal, finding that the motion judge erred in law by failing to address the evidentiary significance of the appellant's affidavit detailing her severe injuries and lack of alternative housing.

The court held that this silence precluded meaningful appellate review of whether the partition and sale would cause hardship amounting to oppression.

The matter was remitted for a new hearing.

The appellant chiropractor appealed the liability, penalty, and costs decisions of the Discipline Committee of the College of Chiropractors of Ontario.

The appellant had been found guilty of professional misconduct for sending threatening emails to a colleague who had previously complained about him, and for failing to cooperate with the College's investigation.

The Divisional Court upheld the findings of misconduct regarding the inappropriate communications and the initial failure to cooperate, but set aside the finding that the appellant failed to cooperate after an investigator was appointed.

The court upheld the penalty, which included a 12-month suspension and a $10,000 fine.

A majority of the court also upheld the costs award of $166,194.50 against the appellant, finding it reasonable given the circumstances of the hearing.

This costs endorsement addresses the plaintiffs' request for partial indemnity costs following their successful resistance of a motion brought by the defendants.

The court found the plaintiffs' claim for $50,130.33, inclusive of fees, disbursements, and HST, to be reasonable, considering the complexity and importance of the underlying motion.

The court rejected the defendants' arguments to deny costs, including those related to the conduct of the first motion judge and the plaintiffs' affidavit evidence, emphasizing that the defendants' motion was successfully resisted.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision that reinstated an employee terminated shortly after participating in a union organizing drive.

The Board found the employer failed to prove the termination was free of anti-union animus.

On judicial review, the employer argued the Board breached procedural fairness by refusing to admit new evidence of poor job performance at the hearing, and that its credibility findings were unreasonable.

The Divisional Court dismissed the application, holding that the Board's refusal to admit late evidence accorded with its rules and procedural fairness, and that its findings of fact and credibility were reasonable and well-supported by the evidence.

The appellant appealed a jury trial decision dismissing her personal injury claim against the Toronto Transit Commission for an alleged fall on a bus.

She argued the trial judge erred by refusing to instruct the jury on spoliation regarding overwritten video evidence, allowing cross-examination on her doctor's complete clinical notes, and permitting references to pre-existing injuries.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's evidentiary rulings or jury instructions, as the appellant failed to prove intentional destruction of evidence and the medical records were relevant to her claims.

The defendants moved to set aside service ex juris, dismiss for want of jurisdiction, or stay the action on the basis of forum non conveniens in a franchise dispute.

The plaintiffs sought a declaration of valid rescission of Saab Dealer Sales and Service Agreements under the Arthur Wishart Act (Ontario) and Alberta Franchises Act, and damages for statutory misrepresentation or breach of contract.

The court found a real and substantial connection to Ontario because the defendant franchisor carried on active business in the province.

The court also determined that California was not a clearly more appropriate forum, considering factors such as the residence of plaintiffs, location of witnesses, governing law, and the avoidance of proving Ontario law in a foreign jurisdiction.

The motion was dismissed.

The plaintiff appealed a motion judge's refusal to approve a class action settlement regarding alleged copyright infringement by the defendant's online legal database.

Following Supreme Court of Canada decisions that significantly enhanced the defendant's fair dealing defence, the parties agreed to a settlement including a cy-près payment and a non-exclusive licence from class members.

The Divisional Court allowed the appeal and approved the settlement, finding the motion judge erred in characterizing the licence as a property right and in elevating the standard for settlement approval by introducing 'institutional fairness' as a new factor.

The defendants appealed a motion judge's decision to certify four additional common issues in two related class actions brought by former employees regarding the distribution of a pension plan surplus.

The Divisional Court dismissed the appeal regarding the viability of the cause of action under s. 8(10) of the Pension Benefits Standards Act, 1985, finding it was not plain and obvious that the employer-administrator was not in a conflict of interest.

However, the court allowed the appeal in part to amend the class definition in one of the actions to remove restrictive and vague language.

The Attorney General for Ontario sought judicial review of an arbitration award between CUPE Local 27 and the Greater Essex County District School Board, arguing the arbitrator erred in interpreting s. 177 of the Education Act.

The Divisional Court dismissed the application for the reasons given in a related Stated Case (2016 ONSC 2361), finding the result was the same regardless of whether the standard of review was correctness or reasonableness.

Costs of $5,000 were awarded to CUPE Local 27.

The Minister of Education brought a Stated Case asking the Divisional Court to determine whether the Education Act permits school boards to pay for life insurance and health benefits for retired employees over 65 years of age.

The Minister argued that the Act only permits payments to current employees and that specific statutory authority is required for such expenditures.

The Court held that while ss. 177(3) and 177(4) do not authorize these payments, other sections of the Act, including ss. 58.5(1), 170(1)18, 171(1)3, and 177(1), when read together and in context, provide the necessary authority.

The Court found that school boards have the power to negotiate and pay for post-retirement benefits as part of employee compensation packages.

The appellants appealed a Master's decision refusing to add a proposed defendant to their counterclaim due to an expired limitation period.

The Divisional Court allowed the appeal, finding that the date of performance or when the oppression claim arose could not be determined from the pleadings.

The court held it was an error in principle to refuse leave to amend at this stage, without prejudice to the respondents' right to plead the Limitations Act.

The appellant appealed a decision confirming a Master's Report which found that a contract for the supply of light fixtures was between the respondent distributor and the respondent electrical contractor, rather than the appellant.

The Divisional Court dismissed the appeal, finding ample evidence to support the Master's factual findings regarding the identity of the contracting parties.

Leave to appeal the costs order was also denied.

The appellant appealed a summary judgment decision dismissing his wrongful dismissal claim.

The motion judge had found that the appellant abandoned his employment by failing to return to work, failing to provide medical documentation for short-term disability, and relocating to another province.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the appellant abandoned his position after 8.5 months of absences and warnings.

The court also upheld the finding that the employer had no independent duty to accommodate beyond its short-term disability plan.

The appellant, who had an extensive litigation history against the respondent municipality, appealed a costs order.

The application judge had declined to award costs on the appellant's application to quash two municipal resolutions banning him from municipal facilities, finding that success would have been divided had the matter been heard on the merits before the resolutions were repealed.

The Divisional Court dismissed the appeal, holding that the application judge made no error in principle and that it was reasonably open to him to find that success would have been divided.

The applicant physician sought judicial review of a decision by the General Manager of OHIP, which reduced his stale-dated billing claims from $572,462.41 to $203,864.07 following a sample audit.

The applicant argued the General Manager lacked jurisdiction to reduce the claims under the amended Health Insurance Act, acted unreasonably, and breached procedural fairness by refusing a meeting.

The Divisional Court dismissed the application, finding the General Manager had discretion under s. 18(3) to set conditions for reviewing late claims, the sample audit methodology was reasonable, and procedural fairness was met without an in-person meeting.

The appellant bank appealed an interlocutory order adjourning its summary judgment motion.

The motion judge had adjourned the motion to hear oral evidence regarding whether the bank knew or should have known that the respondent's brother was using a line of credit, secured by the respondent's condominium, for his own benefit contrary to a trust agreement.

The appellant argued that under Hryniak v. Mauldin, the motion judge was required to determine if there was a genuine issue for trial based solely on the paper record before ordering oral evidence.

The Divisional Court dismissed the appeal, holding that Hryniak does not restrict a motion judge's inherent equitable jurisdiction to adjourn a motion and hear oral evidence to determine if a genuine issue for trial exists.

The appellant appealed a decision dismissing her appeal of a final order that found no material change in circumstances to justify continuing spousal support.

The Divisional Court upheld the lower court's decision, finding no palpable and overriding error in the determination that the appellant failed to prove a material change in circumstances under section 37(2) of the Family Law Act.

The appeal was dismissed with costs.

The applicant brought motions under section 21(5) of the Courts of Justice Act to review and set aside a Superior Court judge's costs order and an order finalizing the text of a decision made on appeal from a Master.

The court found that the Divisional Court lacked jurisdiction to hear an appeal of the costs order or to reconsider the finalization of the order under section 21(5).

The proceeding was quashed as vexatious under Rule 2.1.01 because it had no reasonable prospect of success.