Gerald L.R. Ranking

The applicant, a full member of the Ontario Association of Landscape Architects, brought an application for judicial review to quash a by-law that reduced the number of examination sections required for full membership from five to three.

The applicant argued the by-law was unreasonable, created two categories of full members, and was contrary to the public interest.

The Divisional Court dismissed the application, finding that the enactment of the by-law was a legislative function not amenable to judicial review for reasonableness, the by-law was intra vires the Association's statutory powers, and the court should defer to the Association's expertise in setting professional standards.

The appellants appealed an order of the motion judge.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion and no demonstrated prejudice to the appellants' claims flowing from the order.

The appellant, ING Canada Inc., appealed an order striking out portions of its amended statement of defence in an action brought by the respondents for misrepresentation and breach of a share purchase agreement.

The struck portions included pleas that the respondents owed an implied duty of good faith to disclose errors discovered before closing, references to the parties' intentions and expectations, and related factual allegations.

The Court of Appeal allowed the appeal in part, holding that the law regarding implied duties of good faith in commercial contracts is not fully settled, and therefore it was not plain and obvious that the defence would fail.

The court concluded that the detailed analysis required to determine whether to imply a duty of good faith, and the relevance of the parties' intentions, should be left for trial.