Frank N. Marrocco

The applicant sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal denying benefits for a shoulder injury.

The applicant had previously received benefits for an elbow injury caused by repetitive stress at work.

The Tribunal concluded that the shoulder injury arose after the elbow injury and was not caused by it, nor by a workplace accident.

The Divisional Court dismissed the application, finding no error of law or palpable and overriding error of fact in the Tribunal's assessment of the medical evidence and application of the statutory presumption of causation.

The appellant, who received a structured settlement from a 1980 motor vehicle accident, appealed a decision reducing his Ontario Disability Support Program benefits.

The Director determined that only the $60,000 principal used to purchase his lifetime annuity was exempt as damages for pain and suffering under O. Reg. 222/98, while the ongoing payments exceeding that amount constituted non-exempt interest income.

The Social Benefits Tribunal upheld this decision.

The Divisional Court dismissed the appeal, confirming that the exemption is limited to the original lump sum and does not extend to the interest generated by the annuity.

The appellant, a plumbing subcontractor, registered a general lien against all lots in two subdivisions after the general contractor made an assignment in bankruptcy.

The owners had written contracts with the general contractor specifying that liens would arise and expire on a lot-by-lot basis.

The Divisional Court upheld the motions judge's decision to discharge the general liens, finding that section 20(2) of the Construction Lien Act extinguishes general lien rights for both contractors and subcontractors when the primary contract contains a lot-by-lot provision.

The court also dismissed the appellant's attempt to continue the action for unjust enrichment and quantum meruit, and refused leave to appeal costs.

Following the dismissal of the applicant's application for judicial review, the court received written costs submissions from the respondent Ministry.

The applicant did not provide submissions.

The court found the Ministry's requested costs to be fair and reasonable, awarding partial indemnity costs in the amount of $6,275.

In advance of a scheduled sanction hearing for contempt findings, the trustee in bankruptcy and two contemnors moved for broad production of documents arising from related litigation in California involving the respondent corporation.

The moving parties sought depositions, financial statements, and additional litigation materials, arguing the information was relevant to their ability to answer or mitigate prior contempt findings and the sanctions to be imposed.

The court applied the relevance standard previously articulated for the sanction hearing and declined to grant a sweeping production order that would effectively retry the foreign proceedings.

Limited production was ordered, including five deposition transcripts of a key corporate officer and financial statements of the respondent corporation.

Requests for additional documents concerning alleged “straw sale” transactions were refused.

The plaintiff was injured in a motor vehicle accident in Alberta.

His insurer brought a subrogated action in his name for property damage without his knowledge, which was resolved by a consent judgment.

The plaintiff subsequently commenced a personal injury action in Ontario.

The defendant appealed the dismissal of a summary judgment motion, arguing the personal injury claim was barred by res judicata as one wrong cannot generate multiple causes of action.

The Divisional Court dismissed the appeal, holding that the Alberta Insurance Act differentiates subrogated property damage claims from personal injury claims, and an implied term in the consent judgment preserved the plaintiff's right to sue for personal injuries.

The applicant challenged the constitutionality of a regulation under the Highway Traffic Act that requires drivers 80 years of age and older to undergo biennial testing to renew their driver's licences.

The applicant argued this requirement discriminated on the basis of age contrary to s. 15 of the Charter.

The Divisional Court dismissed the application, finding that the testing program is individualized, sensitive to the potential problems of aging, and not based on arbitrary or demeaning stereotypes.

The court concluded the regulation does not violate s. 15 of the Charter.

Following a fraudulent conveyance trial in which allegations of conspiracy and damages against a defendant were rejected, the successful defendant sought substantial indemnity costs.

Although the court had found the defendant assisted in attempts to hinder collection efforts, it declined to impose damages and granted no substantive relief against her.

The court held that her status as a contemnor did not bar a costs award, particularly given that the plaintiffs had pursued duplicative litigation contrary to earlier representations and had failed to prove damages.

Substantial indemnity costs were warranted due to unproven allegations of fraud and the breach of a prior representation to the court.

Costs of $665,990.96 were awarded jointly and severally against the opposing parties, with a solicitor’s lien recognized under the Bankruptcy and Insolvency Act.

The defendants, previously found in contempt of multiple court orders relating to bankruptcy and asset disclosure, sought an order requiring broad disclosure of documents from the plaintiffs for an upcoming contempt sanction hearing.

The court considered privilege claims over numerous documents, including solicitor‑client communications, settlement communications, and materials arising from joint retainers.

The court held that several documents were not protected or that privilege was displaced by competing public interests, including the integrity of ex parte orders and prior incarceration resulting from the proceedings.

Evidence suggesting potential fraud by related corporate actors and possible nondisclosure in earlier applications justified expanded disclosure.

The court ordered production of specified materials and directed that the corporate plaintiff produce all further relevant documents subject to a privilege schedule.

The applicant local unions sought judicial review of decisions by the Ontario Labour Relations Board finding that the international union had just cause to merge them with another local.

The applicants challenged the Board's use of a consultation process rather than a full hearing, and its refusal to order production of a specific report.

The Divisional Court held that the Board's choice of process was within reasonable expectations given its expertise.

Although the Court criticized the Board's failure to order production of the report, it declined to quash the decision, finding the merger was supported by an independent expert's unqualified recommendation.

The application for judicial review was dismissed.

The applicants sought to subdivide land and appealed draft conditions to the Ontario Municipal Board, arguing Charter violations.

The City successfully moved to strike the Charter issues.

Nine months later, the applicants sought reconsideration, which the Board refused.

A single judge of the Divisional Court denied leave to appeal that refusal.

The applicants then moved before a three-judge panel of the Divisional Court to set aside the single judge's decision.

The panel dismissed the motion, finding the single judge did not decline jurisdiction and reasonably concluded the Board's emphasis on finality and procedural rules was appropriate.

The applicants sought judicial review of the respondent municipality's decision to revoke their kennel licence, alleging discrimination based on their religious beliefs.

The municipality had revoked the licence following inspections that revealed unsanitary conditions, poor ventilation, inadequate lighting, and a failure to provide necessary veterinary care.

The Divisional Court dismissed the application, finding that the municipality's decision was reasonable, based on credible evidence of by-law violations, and made following a procedurally fair process.

The applicants failed to meet their onus of proving bias.

The respondents were seasonal agricultural workers who were seriously injured in a motor vehicle accident shortly after arriving in Ontario.

They remained in Ontario for medical treatment after their work permits expired and sought continued OHIP coverage.

The Health Services Appeal and Review Board found they were eligible for continued coverage.

The appellant appealed.

The Divisional Court allowed the appeal, finding that the plain wording of the regulation requires a valid work permit for OHIP eligibility, and the respondents ceased to be eligible once their permits expired.

The appellants appealed a trial decision awarding the plaintiffs $20,000 for a purchaser's lien and dismissing their counterclaim and crossclaims, as well as the subsequent costs awards.

The appellants argued the $20,000 award constituted double recovery because the plaintiffs had previously settled with other defendants for $400,000.

The Divisional Court dismissed the appeal, finding no double recovery because the purchaser's lien claim was only advanced against the appellants.

The court also found no error in principle in the trial judge's discretionary costs awards.

The respondent, having been successful in the appeal, sought costs on a substantial indemnity basis, citing criticisms of the appellant's counsel.

The Divisional Court rejected the request for substantial indemnity costs, finding that counsel's failure to remit a notice of hearing was minimally inconvenient and that punishing a party for their counsel's inaccurate time estimate was inappropriate.

Costs were awarded to the respondent fixed at 60% of actual costs, inclusive of disbursements and taxes.

The defendant franchisor appealed a motion judge's refusal to transfer the venue of a franchise dispute from Hamilton to Kitchener.

The defendant argued the motion judge erred by not requiring the plaintiffs' chosen venue to have a rational connection to the claim, relying on the Siemens decision.

The Divisional Court dismissed the appeal, clarifying that motions to change venue require a holistic application of the factors in Rule 13.1.02(2) of the Rules of Civil Procedure.

The court found no error in the motion judge's balancing of the factors and affirmed that a plaintiff's choice of venue, even if lacking a strong rational connection, may be upheld if the defendant fails to demonstrate that a transfer is desirable in the interests of justice.

The applicant, a suppression firefighter, sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed his age discrimination complaint regarding mandatory retirement at age 60.

The Tribunal had dismissed the complaint under Rule 19A, finding no reasonable prospect of success based on a previous test case (Espey) that upheld the mandatory retirement provision as a bona fide occupational requirement.

The Divisional Court held that the Tribunal's decision was reasonable, as the applicant failed to provide evidence demonstrating that the result in his case would differ from the established precedent.

The appellant lawyer, acting as an executor, advanced an unsecured loan from estate assets to an employee to placate a client.

The Law Society Hearing Panel found this to be conduct unbecoming a lawyer and a breach of fiduciary duty.

The Appeal Panel affirmed the decision.

On appeal to the Divisional Court, the appellant argued the panels failed to properly apply the prudent investor test under section 27 of the Trustee Act.

The court dismissed the appeal, finding the standard of review was reasonableness and the panels correctly concluded the investment was imprudent as it was motivated by personal interests rather than an overall investment strategy.

The defendants brought a motion for summary judgment dismissing a civil claim alleging negligent police investigation and failure to test the contents of a needle that punctured the plaintiff while she was working at a women’s shelter.

The plaintiff alleged the police negligently failed to lay criminal charges and failed to arrange testing of the needle’s blood contents, causing prolonged anxiety about possible infection with communicable diseases.

The court held there was no genuine issue requiring a trial and applied the summary judgment framework articulated in Hryniak v. Mauldin.

The evidence demonstrated the police had consulted Crown attorneys who advised there were no reasonable grounds to prosecute, and the police had no authority under the Mandatory Blood Testing Act, 2006 to compel testing.

Any failure to obtain testing was attributable to the plaintiff’s own inaction rather than negligence by the defendants.

The appellant mother appealed a summary judgment order making her daughter a Crown ward without access.

She argued the motion judge erred in denying her an adjournment to retain new counsel and present additional evidence, and in granting the order on the record before him.

The Divisional Court admitted fresh evidence regarding a new parenting assessment but found it did not raise a genuine issue requiring a trial.

The court concluded the motion judge made no errors in denying the adjournment or in finding that Crown wardship without access was in the child's best interests.

The appeal was dismissed.