G. Dennis Lane

The appellant insurer appealed an order requiring it to produce its underwriting file for discovery in an insurance coverage dispute.

The Divisional Court found that while the motion judge applied the wrong test ('could be relevant' instead of 'semblance of relevance'), the result was correct.

Given the unusual circumstances involving allegations of knowledge possessed by the insured and insurer at the time the policy was issued, the entire underwriting file had a semblance of relevance and was properly ordered produced.

The appeal was dismissed.

The applicant municipality sought judicial review of an arbitrator's decision that prevented it from unilaterally disbanding its full-time fire department and terminating the firefighters' employment.

The municipality had passed a by-law to replace the full-time department with volunteers, arguing it had the authority to terminate the expired collective agreement.

The Divisional Court upheld the arbitrator's finding that the collective agreement remained in effect due to its specific terms and the statutory freeze provisions under the Fire Protection and Fire Prevention Act.

The court confirmed the municipality did not have the unilateral right to annul the collective agreement or bypass the statutory collective bargaining regime.

The respondent, owner of lands east of Lake Superior Provincial Park, sought to use a road within the Park to access its lands for timber harvesting.

The Acting Park Superintendent denied the request based on the 1995 Lake Superior Provincial Park Management Plan.

The application judge granted judicial review, finding the Superintendent's interpretation incorrect and procedurally unfair.

The Court of Appeal allowed the Minister's appeal, holding that the application judge erred by applying a correctness standard.

Applying a pragmatic and functional approach, the Court determined the standard of review was reasonableness or patent unreasonableness, and found the Superintendent's interpretation of the policy document was not unreasonable.

The appellants sued a police detective and others for misfeasance in public office, relying in their statement of claim on testimony the detective gave at a coroner's inquest.

The motions judge struck the paragraphs referencing the inquest testimony under Rule 25.11, finding the testimony protected by s. 42(1) of the Coroners Act.

The Court of Appeal upheld the striking of paragraphs that explicitly relied on the testimony to establish civil liability, but allowed the appeal regarding one paragraph that did not expressly refer to the testimony, finding it was not a 'clearest case' for striking at the pleadings stage.

The appellant appealed a judgment dealing with divorce, custody and access, spousal and child support, and the division of net family property.

The appellant's principal ground of appeal was that the trial judge erred by not ordering joint custody of the two children.

The Court of Appeal dismissed the appeal, finding that the order granting sole custody to the respondent was amply supported by the record and that there was no basis to interfere with the trial judge's comprehensive reasons on the other issues.

The appellant appealed a restraining order granted by the Superior Court of Justice, arguing that a breach of natural justice occurred during the hearing.

The Court of Appeal dismissed the appeal, finding no breach of natural justice, as the appellant was permitted to give viva voce evidence, was properly served with the application, and the applications judge reviewed his materials.

The Court noted that the appellant could apply to vary the restraining order regarding his attendance at his children's school events.

The appeal was dismissed with costs of $1,500 awarded to the respondent.

The appellant appealed a summary judgment dismissing her medical malpractice claims against the respondent doctor.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial.

The negligence claim failed due to a complete lack of expert evidence to support standard of care and causation.

The battery claim failed because the respondent did not conduct the procedure and never touched the appellant.

The claim for lack of informed consent also lacked a genuine issue for trial.

The appellants appealed a decision dismissing their motion on the basis that the Superior Court of Justice lacked jurisdiction because the matter was in the nature of a judicial review application.

The appellants argued the Superior Court had inherent jurisdiction to decline to approve a settlement by the Workers' Compensation Board.

The Court of Appeal dismissed the appeal, holding that the Board's decision to compromise the action was an exercise of a statutory power of decision, and any challenge must be brought by way of judicial review before the Divisional Court.

The appellant appealed the dismissal of his claim for adverse possession or a prescriptive easement over a strip of commercial land.

The trial judge found that the appellant's use of the land on his side of a fence built by the respondent's predecessor was with permission or based on mutual mistake, and lacked the intent to exclude the true owner.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding consent and mutual mistake.

Following a judgment released on January 22, 2004, the parties submitted written submissions on costs.

The appellant sought costs of $6,778.50.

The respondent requested a no-costs order due to financial hardship but conceded the quantum was reasonable.

The Divisional Court found no reason to depart from the rule that costs follow the event and ordered the respondent to pay the appellant costs fixed at $6,778.50.

The appellant appealed decisions of the Ontario Securities Commission finding he acted as an unregistered adviser and imposing sanctions, including a $300,000 costs order, for failing to disclose conflicts of interest while recommending securities at investment seminars.

The Divisional Court applied the pragmatic and functional approach, determining the standard of review was reasonableness for the merits and public interest findings.

The court upheld the Commission's findings that the appellant was in the business of advising and that his failure to disclose conflicts was contrary to the public interest.

However, the court found the Commission's process for determining the $300,000 costs award was procedurally unfair and remitted the costs issue back to the Commission.

The appellant, a member of a police services board, appealed a decision of a civilian commission finding him guilty of misconduct.

The appellant argued that the panel lost jurisdiction due to a reasonable apprehension of bias, as the same three members who adjudicated the hearing had previously participated in the investigation and the decision to hold an inquiry.

The Divisional Court allowed the appeal, holding that the merging of investigative, prosecutorial, and adjudicative functions by the panel members created a reasonable apprehension of bias.

The decisions of the commission were quashed and the matter was remitted for a re-hearing.

The deceased was struck and killed by two motorists while walking on a highway after becoming intoxicated at a college event.

The deceased's family commenced an action under the Family Law Act more than three years after the accident.

The motion judge extended the two-year limitation period under s. 2(8) of the Family Law Act and applied the discoverability rule.

The Court of Appeal allowed the defendants' appeal, holding that the plaintiffs' unawareness of the limitation period did not postpone it, and that whether the requirements of s. 2(8) and the discoverability rule were met should be determined at trial rather than on a motion.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his discrimination complaint to a Board of Inquiry.

The Commission had declined the referral because the employer had made a reasonable settlement offer that matched what the applicant could expect at a hearing.

The Divisional Court dismissed the application, holding that the Commission was correct to consider the settlement offer in exercising its gatekeeper function under the Human Rights Code.

The plaintiff sued the defendant for sexual assault and sought production of the Crown brief from the defendant's related criminal proceedings.

The criminal trial had been stayed, and the defendant's statements to the police had been excluded due to a breach of his s. 10(b) Charter rights.

The Court of Appeal upheld the Divisional Court's creation of a screening mechanism, requiring notice to the Attorney General and police before a Crown brief can be produced in civil proceedings.

However, the Court of Appeal reversed the Divisional Court's ruling that the defendant's excluded police statements were shielded from production, holding that the criminal rule of automatic exclusion for conscriptive evidence does not apply in the civil discovery context.

Following the dismissal of the moving parties' motions, the responding parties sought substantial indemnity costs.

The court found that the moving parties' conduct, which included bringing unmeritorious motions, causing delays, and sending abusive and defamatory letters to the responding parties and their counsel, warranted sanction.

The court awarded substantial indemnity costs fixed at $35,000 plus GST and disbursements, applying the principle that costs must be fair and reasonable.

The Ministry of the Attorney General applied for judicial review of two orders by the Assistant Information and Privacy Commissioner requiring the disclosure of the total amounts paid by the Ministry for court-ordered legal representation of certain individuals in criminal proceedings.

The Ministry argued the records were exempt from disclosure under the Freedom of Information and Protection of Privacy Act due to solicitor-client privilege and the protection of personal privacy.

The Divisional Court dismissed the application, finding that the Commissioner was correct in determining that the aggregate fee amounts were neutral information not protected by solicitor-client privilege, and that the Commissioner's decision that the disclosure would not constitute an unjustified invasion of personal privacy was reasonable.

The appellants, the Ontario Human Rights Commission and the complainant, appealed a Divisional Court costs order that awarded $25,000 against them despite their substantial success on the appeal.

The Court of Appeal allowed the appeal, finding the Divisional Court erred in principle by awarding costs against a successful party and by denying costs to the complainant because he was represented by pro bono counsel.

The Court varied the order to award partial indemnity costs to the appellants for both the Divisional Court proceedings and the appeal.

The appellant commercial landlord appealed a decision allowing the respondent tenant to deduct hydro payments from its gross rent.

The lease contained a general clause stating gross rent included utilities, but a specific clause required the tenant to pay hydro directly to the utility company.

The Court of Appeal allowed the appeal, applying the principle that specific provisions qualify general ones.

The court found the specific requirement to pay hydro directly meant it was not an expense to be paid by the landlord and passed on as part of gross rent, and the tenant was not entitled to deduct these payments.

The appellant pleaded guilty to sexual touching of his teenage stepdaughters and appealed his sentence, arguing the trial judge erred in denying a conditional sentence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that a conditional sentence was inappropriate due to the appellant's lack of sincere remorse and failure to take responsibility.

The court held the sentence was within the appropriate range given the seriousness of the offences.