Gordon Patrick Killeen

The appellant mother appealed a motion judge's order varying child support and dismissing her claim for retroactive support.

The Divisional Court allowed the appeal, finding the motion judge made palpable and overriding errors in applying the 40% shared custody rule without a trial, improperly averaging the father's income over five years under section 17(1) of the Guidelines, and dismissing the retroactive support claim.

Applying the Supreme Court's decision in D.B.S., the Court awarded the mother $40,879.73 in retroactive child support dating back to her effective notice in 2001.

The plaintiff was injured in a motor vehicle accident while a passenger in an uninsured vehicle.

She sought uninsured motorist coverage under the policy of the other driver, who was insured by the respondent.

The motion judge dismissed the action against the respondent, finding the plaintiff was not a 'person insured under the contract' under s. 265 of the Insurance Act.

The Court of Appeal allowed the appeal, applying its previous decision in Taggart.

The Court held that the broader definition of 'insured' in s. 224 informs s. 265, meaning that because the plaintiff was entitled to statutory accident benefits under the respondent's policy, she was also entitled to uninsured motorist coverage.

The Court declined to overrule Taggart, finding it was not decided per incuriam.

The respondent, a licensed driver and trainer, was disciplined by track judges for providing an improper urine sample.

He appealed to the Ontario Racing Commission, which held a hearing de novo.

At the hearing, the Commission allowed the senior track judge from the initial panel to testify.

The Divisional Court quashed the Commission's decision, finding this created a reasonable apprehension of bias.

The Court of Appeal allowed the appeal, holding that the track judge had relevant factual evidence to give and his testimony did not create a reasonable apprehension of bias, as the Commission Panel's ruling did not show preconceived views or give undue weight to his evidence.

The appellant appealed the dismissal of his action.

The action had been dismissed without notice pursuant to Rule 37.07(2) after the appellant failed to comply with a previous affidavit order.

The Court of Appeal found no merit to the appeal, noting the appellant was attempting to re-litigate the affidavit order, an appeal of which had already been quashed.

The appeal was dismissed with costs.

The appellant appealed a decision regarding her bankruptcy discharge, arguing she was entitled to an automatic discharge because the trustee in bankruptcy failed to include a recommendation on her discharge in his report.

The Court of Appeal dismissed the appeal, finding that the appellant had failed to perform several duties and tender required funds, and that the trustee's actions did not invalidate the procedure.

The appellant appealed a trial judgment regarding a breach of contract for machining steel pieces.

The appellant argued the trial judge erred in failing to award damages for a scrapped forging and in apportioning liability for extra honing based on the contract price between the parties rather than the reduced price negotiated with the customer.

The Divisional Court dismissed the first ground, finding no palpable and overriding error in the trial judge's conclusion that the damages evidence was insufficient.

However, the court allowed the appeal in part on the second ground, holding that the trial judge misapplied the law by not basing the apportionment on the appellant's loss of profits from its customer.

The respondent's cross-appeal on factual findings and costs was dismissed.

The appellant appealed a retail sales tax assessment on returnable wooden pallets for the period of 1997 to 2000, arguing that the tax was imposed retroactively by 2001 amendments and therefore interest should not be payable.

The Divisional Court dismissed the appeal, finding that returnable containers were subject to tax throughout the relevant period under the general taxing provisions and did not fall within the manufacturers' exemption, even prior to the clarifying amendments.

The Court of Appeal issued a costs endorsement following an appeal.

The court made no order as to the costs of the motion before the motion judge, as no submissions were made and the issue was not raised at the Divisional Court.

The Divisional Court's costs order was maintained.

The court fixed the costs of the appeal at $10,000 each for the MFP respondents and the Bondy Riley respondents, inclusive of disbursements and GST.

The appellant husband appealed an order requiring him to pay an equalization payment representing half of the damages he was awarded for loss of income in a motor vehicle accident.

The husband argued the trial judge erred by valuing the claim based on the undefended personal injury judgment rather than expert evidence of its lower value at the date of separation.

The Court of Appeal dismissed the appeal, holding that the husband could not dispute the value he attributed to the claim in the personal injury action by presenting different evidence in the matrimonial proceedings to reduce his equalization payment.

The appellants commissioned an investigative report in preparation for a fraud action.

A senior official mistakenly believed a former lawyer for the appellants was still part of their legal team and sent him a copy of the report to review as a potential witness.

The appellants later added the lawyer's former firm as a defendant in the action without first retrieving the report.

When the appellants demanded the return of the report claiming litigation privilege, the lawyer refused.

The Court of Appeal held that while the initial disclosure did not waive privilege against the adversaries, the appellants lost the right to assert privilege over the document in the lawyer's hands once they sued his firm without first demanding its return.

The Court of Appeal issued an endorsement regarding costs following an appeal.

The respondents were awarded costs of $10,000 against the appellant Wyndham Street Investments Inc. Although the appellant City of Guelph achieved success on the appeal, the court found its conduct played a key role in fostering the dispute.

Consequently, the City was awarded reduced costs of $3,000 against the respondents.

The appellant sought to set aside a 1996 settlement agreement based on the respondent's fraud in order to pursue claims for spousal support and equalization.

The trial judge refused to grant rescission, finding that the appellant suffered no loss, that it would be difficult to restore the parties to their pre-1996 positions, and that the claims were barred by res judicata and issue estoppel.

The Court of Appeal upheld the trial judge's exercise of discretion and dismissed the appeal.

The appellant appealed a trial judgment finding that no binding agreement was reached between the parties.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to find that the tenant's identity was a material issue and that the parties did not reach a consensus ad idem on that essential issue.

Costs were awarded to the respondents in the amount of $5,000.

The appellants appealed a trial judgment that declared a Committee of Adjustment decision a nullity, invalidated a building permit, and awarded damages for nuisance, trespass, and a new roof.

The Court of Appeal upheld the nullity of the Committee's decision due to lack of notice to the respondents.

However, the Court reversed the finding that the building permit was invalid, noting it dealt with building standards rather than land use.

The Court affirmed that the constructed structure did not comply with the original decision or permit, upheld the damages awards for the roof and punitive damages, and dismissed the appellant's counterclaim for adverse possession of the party wall.

The appellant appealed an order of Justice Backhouse.

The Court of Appeal found that, assuming it had jurisdiction, the appeal was moot in light of a subsequent judgment by Justice Siegel, except for the issue of costs.

The Court found no basis to interfere with the costs order and dismissed the appeal, awarding costs of $2,000 to the respondent.

The appellant appealed a motion judge's decision to vary a procedural consent order and order the disclosure of an audit report.

The Court of Appeal dismissed the appeal, finding that the motion judge properly varied the consent order because the respondent's counsel was unaware of material facts when consenting.

The Court also upheld the disclosure of the audit report, as there was unanswered evidence that the Trustee had already declared its existence and contents to a third party, making it unnecessary to decide the broader issue of whether a Trustee in Bankruptcy can claim litigation privilege.

The appellant appealed the motion judge's decision to strike out his claims against the Association of Professional Engineers of Ontario and the Crown defendants.

The Court of Appeal agreed with the motion judge that the claim against the Association was properly struck out.

The Court also found that the claim against the Crown defendants did not make out a cause of action outside the reach of s. 7(1) of the Public Authorities Protection Act.

The appeal was dismissed with costs.

The appellant insurer appealed a trial judgment finding that coverage under a homeowner's policy was not excluded by a 'trade, profession or occupation' clause.

The insured was performing casual handyman activities when a fire broke out.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the policy or reliance on findings from the underlying tort action that the activities were personal and fell within the grant of coverage.

The respondent property owner successfully sued the appellant municipality in Small Claims Court for a refund of property taxes paid on submerged lands, with the trial judge relying on the doctrine of unjust enrichment.

The municipality appealed to the Divisional Court.

The Divisional Court allowed the appeal and dismissed the action, holding that the Assessment Act provides a comprehensive and exclusive statutory code for assessment disputes.

The equitable doctrine of unjust enrichment cannot be used to bypass or override the statutory appeal mechanisms available to the property owner.