Guy A. Wainwright

The appellant, Lynn Larabie, as executrix of her parents' estate, appealed a Superior Court decision that dismissed her application to quash a zoning by-law passed by the Township of Moonbeam.

The by-law rezoned an adjacent property to permit expansion.

The appellant argued the Township failed to provide proper statutory notice under the Planning Act and regulations, and acted in bad faith.

The application judge found the by-law procedurally illegal due to notice failures but exercised discretion not to quash it, finding no bad faith and negligible broader consequences.

The Court of Appeal upheld the application judge's decision, finding no error in the bad faith analysis or the exercise of discretion not to quash the by-law, despite the procedural illegality.

The appellants, who own most of the bed of Silver Lake, sought a declaration that the lake is non-navigable under the Beds of Navigable Waters Act to prevent other cottage owners from navigating vessels over their portion of the lakebed.

The application judge dismissed the application, applying the definition of 'navigable water' from the federal Canadian Navigable Waters Act (CNWA).

On appeal, the Court of Appeal held that the application judge erred in applying the CNWA definition to a property dispute over lakebed rights.

However, the Court declined to grant the declaration sought by the appellants, noting that the application judge had not resolved the necessary factual issues and that a declaration would not resolve the underlying dispute regarding riparian rights and common law navigability.

The appeal was allowed, and the application was dismissed without prejudice to bringing a fresh application.

The applicants sought an injunction to prevent the respondents from trespassing on their portion of Silver Lake by navigation.

A preliminary issue arose regarding whether the application should be decided using the new, broader definition of "navigable water" from the Canadian Navigable Waters Act (CNWA) enacted in 2019, or the common law definition.

The court ruled that the new definition in s. 2 of the CNWA must be used, as Parliament's intention was to protect navigation rights on more bodies of water.

This interpretation was deemed to produce a just and reasonable result, effectively replacing the common law "aqueous highway" test.

The Appellant appealed a 90-day administrative driver's licence suspension imposed after she failed to provide a breath sample during a traffic stop.

The Appellant argued that she was unable to provide a sufficient breath sample due to severe Chronic Obstructive Pulmonary Disease (COPD).

The Licence Appeal Tribunal found that the Appellant made multiple genuine attempts to comply with the breath demand but was physically unable to do so because of her medical condition.

The Tribunal granted the appeal and ordered the suspension set aside.

The applicants brought a motion under Rule 75.06 of the Rules of Civil Procedure requesting a trial of issues arising from the estate of the deceased.

The court directed a trial on the single issue of the validity of the deceased's will dated May 16, 1994, noting that resolving this issue would likely resolve all other issues or determine if further proceedings are necessary.

The court ordered the affidavits to form the pleadings and permitted cross-examinations.

No costs were awarded as success was split.

The appellant appealed a trial judge's dismissal of her application for retroactive spousal support covering a four and a half year period from June 30, 2010 to December 31, 2014.

The appellant argued the trial judge erred by not accounting for time spent in mediation when considering delay, by failing to address compensatory support, and by not providing reasons for departing from the Spousal Support Advisory Guidelines.

The Court of Appeal upheld the trial judge's decision, finding no error in the exercise of discretion regarding retroactive support, which carries no presumptive right.

In a bifurcated trial of a matrimonial dispute, the court was asked to determine the valuation date.

The respondent argued the parties separated in August 2006 after his extra-marital affair, while the applicant argued they separated on October 31, 2010.

Applying the Oswell factors for living separate and apart under the same roof, the court found that the parties continued to function as a family, maintained joint financial arrangements, and did not take steps consistent with a final separation until 2010.

The court concluded the valuation date was October 31, 2010.

The appellant mother appealed a finding of contempt for failing to comply with an access order regarding the parties' daughter.

The mother argued that the child refused to attend access visits and that she had done her best to encourage attendance.

The Court of Appeal upheld the motion judge's finding that the mother had effectively abdicated her parental authority by leaving the decision to the child and failing to take concrete measures beyond mere encouragement.

The appeal was dismissed.

Following a trial where the plaintiff's construction contract claims were dismissed and the defendant was awarded damages on its counterclaim, the court determined costs.

The defendant sought substantial indemnity costs based on an unaccepted offer to settle.

The court awarded partial indemnity costs to the defendant, noting the complexity of the issues, the amount at stake, and the defendant's success, but declined to award substantial indemnity costs because the defendant's counterclaim was only partially successful and poorly documented.

On a contempt motion arising from repeated denial of child access, the court considered whether a custodial parent may rely on a 12-year-old child's refusal to attend visits with the access parent.

Applying the contempt test, the court held that an earlier order lacked the clarity required for contempt, but a later order directing a specific drop-off date, time, and location was clear and unequivocal.

The court found beyond a reasonable doubt that the mother deliberately and wilfully failed to comply by leaving the access decision to the child rather than exercising normal parental authority.

A finding of contempt was made, with sanction to be determined later.

In a high-conflict parenting dispute, the respondent father brought a contempt motion alleging the mother failed to comply with an interim access order and sought additional interim relief including summer parenting time.

The court held that contempt requires strict compliance with procedural requirements, including specific allegations tied to an existing order.

Because the alleged breach related to informal arrangements rather than the precise terms of the operative order, the contempt motion was dismissed.

The court nevertheless addressed interim parenting issues, directing that the mother provide a schedule allowing three weeks of summer access and confirming that regular alternating weekend access would resume after the summer.

Other requested relief was adjourned.

Following a six‑day construction contract trial where the plaintiff contractor obtained damages for breach of contract, the court determined the appropriate costs award.

The successful party sought partial indemnity costs significantly higher than the amount the defendant argued was reasonable.

Applying Rule 57.01 of the Rules of Civil Procedure and established appellate guidance on reasonableness and proportionality, the court reviewed counsel’s hourly rate, time spent, success at trial, litigation conduct, and challenged disbursements.

The court found the plaintiff was substantially successful but reduced certain claimed rates and disbursements, including photocopying and unexplained charges.

A fair and reasonable partial indemnity costs award was fixed accordingly.

The plaintiff general contractor brought an action for breach of contract against the defendant subcontractor after the defendant abandoned a hospital construction project.

The court found that the subcontracts incorporated standard construction terms by reference and included both the hospital addition and kitchen renovations.

The court held that the defendant was not entitled to abandon the project and was in breach of contract.

The plaintiff was awarded $372,829.61 in damages for the reasonable costs incurred to complete the defendant's unfinished work.

The appellant school board appealed a trial judgment finding it breached its obligation to treat bidders equally and fairly during a tendering process.

The respondent, an unsuccessful bidder, alleged the successful bid was non-compliant because the bidder provided a letter of credit instead of the required performance bonds.

The Court of Appeal allowed the appeal, finding that the tender documents only required performance bonds upon acceptance of the bid.

The successful bid was compliant when submitted, forming Contract A. The appellant's acceptance formed Contract B, discharging obligations to the respondent.

The subsequent modification to accept a letter of credit did not breach the respondent's contractual rights.

The appellant appealed a trial decision dismissing its action and allowing the respondents' counterclaim for rescission of an agreement for the removal of sand and gravel from the respondents' property.

The trial judge rescinded the agreement on the basis of unconscionability, noting the unequal bargaining power, lack of independent legal advice, and the fact that the unilingual francophone respondents were presented with an English agreement containing overreaching terms.

The Court of Appeal found no error in the trial judge's credibility findings, his rejection of the laches defence, or his award of $4,000 for unjust enrichment.

The appeal was dismissed.

The appellant lawyer appealed a trial judgment finding that a residential mortgage assigned to him by an insolvent corporate client was a fraudulent conveyance and an unlawful preference.

The appellant also appealed the trial judge's decision to disqualify his proposed counsel due to a conflict of interest and the subsequent refusal to allow him to represent himself while his law firm continued to represent his co-defendants.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decisions regarding legal representation and upholding the finding of a fraudulent conveyance based on badges of fraud, including lack of consideration, insolvency, and secrecy.

The appellants appealed an order vacating certificates under the Mining Act.

The Court of Appeal found that whether the motions judge was acting as a commissioner or a court, he was obliged to decide the matter on the real merits and substance of the case under s. 121 or s. 136 of the Act.

The appeal was allowed, the order vacating the certificates was set aside, and the certificates were confirmed.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal allowed the appeal, set aside the lower court's order, and confirmed the certificates, deeming them to have been issued, filed, and continued as of September 28, 1997.

The parties were ordered to bear their own costs.

The appellants appealed an order finding that their original statement of claim did not cover the claims in issue and that there was no proceeding calling into question an interest in the claims prior to an amendment.

The Court of Appeal agreed with the motion judge on these two issues.

However, the appellants raised a new argument regarding a curative provision under s. 136.

Because the respondents did not have the opportunity to present evidence on whether a substantial wrong or injustice had been occasioned, the Court of Appeal remitted the s. 136 issue to the motion judge and dismissed the appeal on the first two issues.

The applicants sought judicial review of a 1998 decision by a Mining Recorder to register mining claims subject to an aggregate permit.

The Crown respondents brought a motion to strike portions of the application.

The Divisional Court granted the motion, finding that the request to review the Recorder's decision was statute-barred under s. 135 of the Mining Act, which strictly prohibits extensions of time despite the Judicial Review Procedure Act.

The court also held that the application constituted an impermissible collateral attack on the Mining and Lands Commissioner's subsequent appellate decision.