Harriet E. Sachs

The Divisional Court dismissed the moving party's motion for leave to appeal a decision dated June 27, 2024.

Costs were awarded to the responding party in the amount of $5,000.00.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

The applicant purchaser sought a refund of her deposit after failing to close a condominium purchase, arguing she validly rescinded the agreement due to the vendor's failure to complete common elements (parkette and gates) and a material change in the disclosure statement.

The respondent vendor counter-applied for a declaration of breach, forfeiture of deposit, and further damages.

The court dismissed the purchaser's application, finding that the failure to complete common elements was not a fundamental breach or a material change under the Condominium Act, and that a right to rescind cannot be exercised after the agreement has been validly terminated by the vendor.

The vendor's application was allowed regarding the breach and deposit forfeiture, but the claim for damages beyond the deposit was ordered to proceed to trial due to disputed material facts regarding mitigation.

This case involved two applications arising from a failed condominium purchase and sale.

The purchaser sought a refund of her deposit, arguing she validly rescinded the agreement due to the vendor's failure to complete common elements (parkette and gates), which she claimed constituted a material change.

The vendor contended the purchaser breached the agreement by failing to close, leading to termination, and that rescission was not possible after termination.

The court found that the purchaser had no right to refuse closing based on uncompleted common elements, as the agreement explicitly stated this would not deem the unit incomplete.

Furthermore, a change in the construction schedule for amenities was not a "material change" under the Condominium Act, 1998.

The court affirmed the common law principle that an agreement cannot be rescinded once it has been validly terminated.

Consequently, the purchaser's application for a deposit refund was dismissed, and the vendor's application was allowed, confirming the purchaser's breach, the vendor's right to terminate and retain the deposit, and the right to sue for further damages.

A trial of an issue was ordered to determine the quantum of damages exceeding the forfeited deposit.

Loan Away Inc. sought an interlocutory injunction against Western Life Assurance Company to compel payments and prevent termination of insurance policies, and also sought to amend its statement of claim to add IWS Creditor Group Inc. and consolidate arbitrations.

Western Life Assurance Company brought a cross-motion to stay the action based on an arbitration clause.

The court dismissed Loan Away's request for an interlocutory injunction due to lack of an undertaking as to damages and failure to meet the strong prima facie case and irreparable harm tests for a mandatory injunction.

The court granted Western's motion to stay the action and refer the issues to arbitration, including the arbitrator's jurisdiction over a permanent injunction.

Loan Away's request to consolidate arbitrations was denied due to lack of consent from all parties, and its motion to add IWS as a party was also denied as no tenable cause of action was pleaded against IWS.

Lawrence Mark Dale sought leave to extend the time for appealing three interlocutory orders made by Faieta J., along with a stay of those orders, directions for the case, and an order appointing a lawyer for his children.

The court dismissed the motion, finding that Dale failed to satisfy the test for granting an extension of time to appeal, particularly regarding the merits of the proposed appeals and his explanations for delay.

The court also noted Dale's wilful breaches of previous court orders.

The appellant was charged with drug trafficking offences after police executed a search warrant for his residence based on information from an untested confidential informant.

The police obtained the warrant with minimal corroboration of the informant's tip and without full disclosure of the informant's criminal record.

The trial judge found the search and arrest violated the appellant's Charter rights under sections 8 and 9 but admitted the evidence under section 24(2), finding the police acted in good faith.

The Court of Appeal allowed the appeal, finding the trial judge erred in characterizing the police conduct as good faith and in failing to properly weigh the Grant factors.

The court held that negligent investigation and preparation of the information to obtain warrant, combined with misleading language regarding the informant's credibility, constituted serious Charter breaches that required exclusion of the evidence.

The appellant was acquitted of first degree murder but convicted of contempt of court for refusing to disclose the identity of an alleged third party who he claimed was the actual murderer.

The trial judge sentenced him to three years imprisonment.

On appeal, the appellant argued the trial judge erred by sentencing him on the basis that he may have been the murderer and by failing to credit pre-trial custody.

The majority dismissed the appeal, finding the trial judge's language was contextual and did not impact the sentence.

A dissenting judge would have allowed the appeal and reduced the sentence to two years, finding the trial judge improperly considered the possibility of the appellant's guilt and failed to credit pre-trial incarceration as relevant information.

An employee terminated without just cause as President and General Manager of a division sought damages for wrongful dismissal, including reasonable notice, bonus for the year worked, bonus during the notice period, and benefits during the notice period.

The motion judge awarded 17 months' salary in lieu of notice and the 2016 bonus but denied claims for bonus and benefits during the notice period.

The Court of Appeal allowed the employee's appeal and dismissed the employer's cross-appeal, awarding damages for loss of bonus during the notice period and loss of benefits during the notice period, while upholding the 17-month notice period and 2016 bonus award.

The appellant appealed a conviction for sexual assault entered by a trial judge sitting without a jury.

The appellant raised two grounds of appeal: first, that the trial judge erred in law by considering both parties' failure to climax as part of his credibility assessment; and second, that the trial judge failed to consider potential collusion between the complainant's family members who testified.

The Court of Appeal dismissed the appeal, finding that the trial judge's assessment of the evidence against common sense understanding of human behaviour was not an error, and that collusion was neither alleged at trial nor had any air of reality.

The appellant, found not criminally responsible on account of mental disorder for uttering threats to cause death or bodily harm, appealed the Ontario Review Board's disposition continuing his detention at a forensic mental health facility.

The appellant sought an absolute discharge, arguing there was no evidence he posed a significant threat to public safety, the Board's reasons were insufficient, and his lack of incident while off medication for over a year demonstrated reduced risk.

The Court of Appeal dismissed the appeal, finding the Board's reliance on psychiatric evidence of continued mental illness symptoms and escalating risk assessment was reasonable and supported by evidence.

The appellant was convicted of aggravated assault and simple assault (included offence on choking charge) and acquitted of threatening death following an altercation with his wife.

The appellant appealed on two grounds: (1) that the trial judge erred in instructing the jury there was no evidence the pot of spaghetti sauce fell from the stove rather than being poured by the appellant, and (2) that the trial judge erred in allowing Officer Henderson to testify about the appearance of neck injuries as fingerprints.

The Court of Appeal dismissed both grounds of appeal and upheld the convictions.

The appellant was convicted of administering a noxious substance on April 17, 2014, and acquitted of administering a stupefying substance for the purpose of sexual assault and sexual assault.

He was sentenced to nine months in custody plus two years' probation.

On appeal, the appellant challenged both the conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no inconsistency between the conviction and acquittals, and rejected arguments based on circumstantial evidence principles.

The court also dismissed the sentence appeal, finding no error in principle in the trial judge's rejection of a conditional sentence and no basis to interfere with the nine-month custodial sentence imposed.

A motion for directions brought by counsel in an appeal alleging ineffective assistance of counsel.

The applicant sought access to transcripts of cross-examinations on affidavits to assess potential intervener status and to clear his professional reputation.

The Court of Appeal dismissed the motion, finding no merit to the intervener application and no basis to provide transcripts to a non-party to support a collateral issue unrelated to the core appeal.

The defendants (Foodfest, Henry Ender, and Sue Ellen Ender) brought a motion for leave to appeal a decision that dismissed their summary judgment motion, which sought to dismiss the plaintiff's claims against them on the basis of limitation periods.

The court applied the strict two-part test for granting leave to appeal under Rule 62.02(4).

It found no conflicting decisions on matters of principle and no reason to doubt the correctness of the motion judge's order that transcended the immediate parties' interests.

The motion judge's finding that the discoverability of the conspiracy claims was a genuine issue requiring a trial was upheld.

Consequently, the motion for leave to appeal was dismissed, and costs were awarded to the plaintiff.

The appellant sought to appeal a decision dismissing her claim against multiple respondents as frivolous, vexatious, and an abuse of process.

The court, on its own initiative under Rule 2.1.01(3), considered dismissing the appeal on the same grounds.

The appellant's claim was for an amount exceeding the Divisional Court's jurisdiction, and she had been advised of this lack of jurisdiction but continued to pursue the appeal in the wrong forum.

The court found the appeal to be an abuse of process and dismissed it without an order as to costs.

The moving party sought leave to appeal an order dismissing his appeal of a Master's order that had stayed his action pending payment of numerous outstanding costs orders.

The court dismissed the motion for leave to appeal, finding that the moving party failed to meet the strict two-part test under Rule 62.02(4).

Specifically, there was no conflicting decision of another judge or court, no reason to doubt the correctness of the order, and the proposed appeal did not involve matters of such importance that leave should be granted.

The defendant/moving party sought leave to appeal a decision dismissing his motion for costs.

The motion judge had found that the costs issue was already determined by a prior Master's decision, which was upheld on appeal.

The court dismissed the motion for leave to appeal, finding that the moving party failed to meet the test under Rule 62.02(4) as there was no reason to doubt the correctness of the decision, no conflicting decisions, and the issues did not extend beyond the immediate parties.

Costs were awarded to the responding party on a partial indemnity basis.

The applicant ministry sought judicial review of an order of the Information and Privacy Commissioner requiring disclosure of the full names of Family Responsibility Office employees contained in a requester’s file.

The ministry argued the information was excluded from disclosure under s. 65(6)3 of the Freedom of Information and Protection of Privacy Act as relating to labour relations matters, or alternatively exempt under ss. 14(1)(e) and 20 due to safety concerns.

The Divisional Court held the IPC reasonably concluded the records were created in the course of the institution’s operational mandate rather than about labour relations, and therefore were not excluded from the Act.

The court also found no evidence that disclosure to the requester posed a safety risk to the employees and determined that compliance with the IPC order would not conflict with a prior Grievance Settlement Board order governing employee identification practices.

The moving party sought an order incorporating and enforcing a family arbitration award under s. 59.8 of the Family Law Act.

The responding party opposed enforcement on the basis that she had commenced an application to set aside the award under s. 46 of the Arbitration Act, 1991, alleging issues including lack of jurisdiction, evidentiary concerns, denial of natural justice, and reasonable apprehension of bias.

The court found that the grounds advanced largely duplicated issues previously raised in an unsuccessful motion for leave to appeal the award.

The court held that permitting the pending set-aside application to block enforcement would undermine the statutory regime governing family arbitration awards.

The order incorporating the arbitral award was therefore granted and the moving party was awarded costs.