Frank N. Marrocco

The minor appellant brought an application seeking child support from her biological father.

The motion judge held that the appellant was required to have a litigation guardian under Rule 7 of the Rules of Civil Procedure, finding the Family Law Rules did not adequately cover the situation.

On appeal, the Divisional Court held that the Family Law Rules do adequately cover the situation, specifically exempting a child in a child support case from the definition of a 'special party'.

The appeal was allowed, and the order requiring a litigation guardian was set aside.

The appellants appealed a mistrial ordered by the trial judge in a civil fraud proceeding within a matrimonial context.

The trial judge declared a mistrial after thirteen days of evidence, citing the impact of extensive delay as the trial would have to continue on an installment basis.

The Divisional Court dismissed the appeal, finding the trial judge properly exercised her discretion and her decision was entitled to great deference.

The court provided directions for the new trial to minimize further delay, including preserving the evidence and rulings from the mistrial.

The appellant father appealed the dismissal of his motion to change child and spousal support.

He argued the trial judge erred in finding the children did not spend 40% of their time with him and in her assessment of his income.

The Divisional Court dismissed the appeal, finding the trial judge made no palpable and overriding error in her factual findings regarding the parenting schedule, the imputation of income, and the lack of a material change in circumstances.

The applicant lawyer sought leave to appeal an interlocutory order dismissing his motion for summary judgment.

The underlying action involved claims by investors that the applicant breached duties and knowingly assisted in breaches of trust related to mortgage investments.

The Divisional Court dismissed the application for leave to appeal, finding that the motions judge's decision to require a trial for complex factual and legal issues did not give rise to a question of broad significance or general application affecting the development of the law.

The appellant employer appealed a trial decision finding that the termination clause in the respondent's employment contract was void.

The clause provided for base salary during the notice period but excluded pension contributions and a car allowance, contrary to the minimum requirements of the Employment Standards Act, 2000.

The Divisional Court upheld the trial judge's finding that the clause was void and could not displace the common law presumption of reasonable notice.

The appeal was dismissed.

Following the dismissal of their appeals from decisions of the Environmental Review Tribunal regarding wind farm approvals, the appellant landowners argued they should not pay costs because the litigation was in the public interest.

The Divisional Court held that while the appeals were not public interest litigation that would merit no costs, they did contain a strong public interest component regarding the constitutionality of the legislative regime.

Taking this into account, along with the lack of particularity in the respondents' bills of costs and the lower scale of costs typically awarded on appeals to the Divisional Court, the court awarded reduced partial indemnity costs to the successful respondents totaling $67,000.

The applicants, who recently took over the operation of a convenience store, sought judicial review of a Minister's decision applying a tobacco sales prohibition order to them.

The prohibition was issued under section 16 of the Smoke-Free Ontario Act because employees of the prior, unrelated operator had been twice convicted of selling tobacco to minors.

The Divisional Court allowed the application, holding that on a purposive interpretation of the Act, the prohibition can only be applied to a person who has committed at least one tobacco sales offence.

Since the applicants had never been convicted of such an offence, the Minister lacked jurisdiction to apply the prohibition to them.

The applicants sought leave to appeal a Superior Court judge's order that overturned a Master's decision requiring the respondent to pay security for costs.

The Master had found the respondent was ordinarily resident outside Ontario and had insufficient assets.

The Superior Court judge reversed this, finding the respondent's directors and officers resided in Ontario and it had sufficient assets in a trust account.

The Divisional Court refused leave to appeal, holding that the Superior Court judge correctly applied the corporate residency test to the specific facts and that the issues did not raise matters of public importance warranting leave.

The appellant franchisee appealed a trial decision dismissing its action against the respondent franchisor for alleged breaches of disclosure obligations under the Arthur Wishart Act.

The trial judge found no material change in the franchisor's business operations between the original 1996 agreement and the 2001 renewal, and concluded the appellant failed to mitigate damages by abandoning the franchise.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or assessment of damages.

The appellants, condominium unit owners, appealed the dismissal of their Small Claims Court action against the respondent condominium corporation.

The action challenged a special assessment levied to pay legal fees from an unsuccessful parking dispute.

The deputy judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the appellants discovered their claim more than two years before commencing the action.

The Divisional Court upheld the dismissal, confirming the cause of action accrued when the board's decision was ratified and the special assessment took immediate legal effect, not when the first installment was due.

The appellants sued the respondent consulting firms for failing to deliver an approved environmental Risk Assessment on time.

After discovery, the appellants moved to add an individual employee of the respondents as a necessary defendant, which the Master refused.

The appellants appealed the Master's decision and brought a motion to introduce fresh evidence.

The Divisional Court dismissed the motion to introduce fresh evidence, finding it could have been obtained prior to the hearing with reasonable diligence and would not be conclusive.

The court also dismissed the appeal, holding that the Master made no palpable and overriding error in concluding the individual was not a necessary party, as the corporate respondents were fully insured and capable of responding to the claims.

At a contempt sanction hearing arising from bankruptcy and fraudulent conveyance proceedings, the Trustee sought leave to withdraw the motion for further incarceration after obtaining new information that undermined the bona fides of the creditor applicants' underlying claims and disclosure.

The court held that only the Trustee had standing to enforce the contempt order within the fraudulent conveyance action, and that leave was required because contempt at the sanction stage is a matter between the court and the contemnor.

Applying the full and frank disclosure obligation governing ex parte relief, the court found material non-disclosure in obtaining the Mareva and Anton Piller orders and rescinded those orders.

Although the respondent debtor had not fully purged contempt, further incarceration was not warranted; the motion was withdrawn, Christina Chiang was found to have purged her contempt, and costs were awarded to the Trustee and Christina Chiang against the creditor applicants.

The respondent, Kyrgyzaltyn JSC, sought leave to appeal an order continuing an ex parte Mareva injunction obtained by Stans Energy Corp. The moving party argued that Stans Energy Corp. failed to disclose material information, specifically an English translation of a foreign court decision questioning the jurisdiction of the arbitration tribunal that issued the underlying award.

The Divisional Court granted leave to appeal the continuation of the injunction, finding conflicting decisions on the test for materiality of non-disclosure on ex parte motions and determining that the issue was of sufficient importance to warrant appellate review.

Leave to appeal the specific terms requiring a third party to hold dividends in trust was refused.

The appellants, residents living near three proposed wind turbine farms, appealed decisions of the Environmental Review Tribunal (ERT) that confirmed the Director's issuance of Renewable Energy Approvals (REAs) for the projects.

The appellants argued that the statutory test requiring them to prove the projects would cause 'serious harm to human health' violated section 7 of the Charter.

The Divisional Court dismissed the appeals, finding that the statutory test aligned with the jurisprudential threshold for section 7 claims and did not depart from the consensus scientific view on wind turbines.

The Court also upheld the ERT's treatment of lay witness evidence, its finding that it lacked jurisdiction to review the Director's REA issuance process for Charter compliance, and its discretionary decisions denying adjournments.

The tenant appealed a Landlord and Tenant Board order terminating his tenancy and requiring him to pay for damages to an electrical panel.

The tenant argued he was denied an opportunity to participate because he mistook the date of the continuation hearing, and that the Board was biased.

The Divisional Court dismissed the appeal, finding the tenant had received proper notice of the hearing and the Board was entitled to proceed in his absence under the Statutory Powers Procedure Act.

The Court also found ample evidence supported the Board's conclusion that the tenant wilfully damaged the electrical panel.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that rejected his claim that s. 43(1)(c) of the Workplace Safety and Insurance Act, 1997 violated s. 15(1) of the Charter.

The impugned section limits loss of earnings benefits to two years for workers injured at age 63 or older.

The Divisional Court upheld the Tribunal's decision, finding that the provision did not discriminate on the basis of age as it did not create a disadvantage based on prejudice or stereotyping.

The court further held that even if the provision violated s. 15(1), it would be saved under s. 1 of the Charter.

The application for judicial review was dismissed.

The applicant insurer sought judicial review of a Director's Delegate's decision which found that the respondent insured was not precluded from proceeding to arbitration.

The insurer had denied the insured's claim for a non-earner benefit but failed to provide a copy of the medical report it relied upon until more than two years later.

The Divisional Court held that the Director's Delegate's decision was reasonable, as the failure to provide the medical report meant the insurer provided incomplete reasons for the denial, and thus the two-year limitation period did not commence until the report was finally provided.

The appellant appealed a Master's decision dismissing her motion to set aside a Registrar's order that had dismissed her personal injury action as abandoned.

The Divisional Court found that the Master made palpable and overriding errors by concluding that the appellant's counsel's affidavit had no evidentiary value and by finding prejudice to the respondent based on the expiration of the limitation period.

The court allowed the appeal, quashed the Master's decision, and ordered the Registrar's dismissal order set aside.

In an appeal from a Small Claims Court judgment concerning the return of a condominium purchase deposit, the respondent brought a motion for leave to adduce fresh evidence consisting of email communications between the appellant and his lawyer.

The emails related to whether a contractual deadline for satisfying a status certificate condition had been extended.

The court held that the communications were previously unavailable due to solicitor-client privilege and became producible only after the appellant waived privilege by attaching them to a separate claim against his lawyer.

The evidence was authentic and relevant to the issues on appeal, particularly the determination of whether a new trial should be ordered.

Leave to admit the emails was granted, but leave to introduce pleadings from the separate action against the lawyer was refused.

Following the dismissal of two appeals heard together, the successful respondents sought costs.

One respondent sought substantial indemnity costs based on a Rule 49 offer to settle, while the other sought partial indemnity costs.

The appellant argued that no costs should be awarded because the appeal raised a novel issue of law regarding the interpretation of the Construction Lien Act.

The Divisional Court rejected the appellant's argument, finding the issue was not novel and the appellant's interpretation would have rendered section 20(2) of the Act meaningless.

The court awarded costs of $7,500 to each of the successful respondents.