Heidi Polowin

The children's aid society brought a motion for summary judgment on a status review application, seeking to terminate a supervision order and direct the father's access to a supervised access facility.

The mother supported the motion.

The father, who suffers from an untreated delusional disorder, opposed the motion and sought continued access at his family farm supervised by the society.

The court found no genuine issue requiring a trial, as there were no protection concerns regarding the mother's care of the children.

The court terminated the supervision order, reinstated the mother's sole custody, and ordered the father's access to be supervised at a facility, noting that the society's resources should not be used indefinitely for supervised access when no protection concerns exist.

The defendant territorial government brought a motion to dismiss or permanently stay a wrongful dismissal action commenced in Ontario by a former employee who had worked in Nunavut.

The court applied the jurisdiction simpliciter test from Club Resorts Ltd. v. Van Breda to determine whether a real and substantial connection existed between the dispute and Ontario.

The plaintiff relied on factors including recruitment activities, an Ottawa liaison office, the use of an Ontario-based investigator, and the administration of disability benefits in Ontario.

The court held these did not establish that the defendant carried on business in Ontario and therefore no presumptive connecting factor existed.

In any event, the court found that Nunavut would clearly be the more appropriate forum under the doctrine of forum non conveniens.

The plaintiff sued over an online political message board post describing him as one of the Taliban’s more vocal supporters.

The court held that the words referred to the plaintiff, were published by both the original poster and the forum operators, and were prima facie defamatory in the context of an active armed conflict involving Canadian forces.

However, applying the modern fair comment framework, the court found the statement was recognizable as comment on a matter of public interest, grounded in the plaintiff’s well-known public advocacy concerning Omar Khadr and Afghanistan, and capable of being honestly expressed by a prejudiced or exaggerated commentator.

Allegations of malice and spoliation were rejected.

The action was dismissed, with each side bearing its own costs.

The defendant appealed a master's order granting a nunc pro tunc declaration deeming a statement of claim issued on the date it was received by the court, despite the registrar refusing issuance due to non-compliance with the rule requiring personal attendance.

The claim and filing fee had been delivered to the court office by courier on the final day of the limitation period, but the registrar returned the documents rather than contacting counsel.

The court held that the master's order corrected a procedural irregularity under the Rules of Civil Procedure rather than extending the limitation period under the Limitations Act, 2002.

The plaintiff had made a good faith effort to commence the action within the limitation period and the defendants suffered no prejudice apart from losing a technical limitation defence.

The appeal was dismissed.

The appellant appealed a decision of the Health Professions Appeal and Review Board regarding whether her Master's degree program was "primarily psychological in nature." The Divisional Court dismissed the appeal, finding that the Board conducted a detailed and nuanced examination of the material and that its decision was not demonstrably unreasonable.

The Court noted it was bound to afford deference to the Board's expertise.

No costs were ordered.

The applicant union sought judicial review of a supplementary interest arbitration award concerning per diem meal allowances for cabin personnel on a new low-cost carrier.

The union argued the arbitrator was functus officio and lacked jurisdiction to reverse his previous award.

The Divisional Court dismissed the application, finding that the arbitrator had jurisdiction to clarify an inherent contradiction in the initial award to reflect his manifest intention that the new service remain competitive as a low-cost carrier.

The arbitrator's decision to impose the mainline per diem rate was reasonable.

The appellant appealed a decision of the Discipline Committee finding her guilty of professional misconduct.

The appellant argued that the Committee improperly reversed the onus of proof and applied a different standard in scrutinizing the evidence.

The Divisional Court dismissed the appeal, finding that the Committee correctly articulated the law respecting burden of proof and credibility, and reasonably concluded there was sufficient evidence to establish professional misconduct.

The appellants, former directors of a condominium corporation, appealed two costs decisions that ordered them to personally pay costs for an unsuccessful injunction motion and an administration application they initiated on behalf of the corporation.

The Divisional Court allowed the appeal regarding the injunction motion, finding the motion judge erred by failing to apply the 'man of straw' test for awarding costs against non-parties.

However, the court dismissed the appeal regarding the administration application, finding the application judge correctly applied the test, properly found the directors acted in bad faith, and afforded procedural fairness.

The costs for the injunction motion were redirected to the condominium corporation.

During a criminal trial for trafficking in a substance represented as crack cocaine, the court ruled on two voir dires concerning evidentiary admissibility.

First, the Crown sought to admit police Booking Summary Reports and associated mug shots as business records under s.30(1) of the Canada Evidence Act without calling the identification officer who created them.

The court held that the records were administrative in nature and not caught by the investigative-record exclusion in s.30(10), making the mug shots admissible as reliable business records.

Second, the Crown sought to introduce non‑expert recognition evidence from a police officer who claimed to recognize one accused from surveillance photographs based on a brief prior interaction.

Applying the “prior acquaintance/better position” test from appellate authority, the court concluded the officer lacked sufficient familiarity to provide a reliable basis for recognition and excluded that evidence.

Following dismissal of a civil action arising from a business relationship dispute, the successful defendants sought costs on a substantial indemnity basis, arguing that the plaintiff advanced shifting legal theories and made a late allegation of fraud that was not proven.

The court reviewed the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and the consequences of a rejected Rule 49 offer to settle.

Although unfounded fraud allegations can justify substantial indemnity costs for the entire proceeding, the court found the late fraud allegation was more a misguided attempt than bad faith litigation conduct.

The court therefore declined to award substantial indemnity costs for the entire action but applied the usual Rule 49 consequences.

Costs were fixed as partial indemnity up to the offer date and substantial indemnity thereafter.

The plaintiff alleged that he was induced to leave secure employment by fraudulent misrepresentations that he would become a partner in a siding installation business and share profits.

During trial the theory shifted to deceit and fraudulent misrepresentation, with the plaintiff claiming the defendants planned from the outset to terminate him after he secured new builder clients.

The court held the evidence did not support allegations of fraud, misrepresentation, or a partnership agreement.

The plaintiff was engaged as a commissioned salesperson entitled to a percentage of profits from business he personally generated.

Claims based on unjust enrichment also failed because obtaining new business was precisely the work for which the plaintiff was paid.

Following dismissal of an application seeking removal of a fence demarcating a right of way, the court determined the appropriate costs award.

The successful respondent sought substantial indemnity costs exceeding $30,000, arguing the applicant pursued untenable legal positions and rejected reasonable settlement offers.

The court held that while the respondent was entirely successful and entitled to costs, the case was not sufficiently exceptional to justify substantial indemnity costs.

Applying the principles of reasonableness under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court reduced the claimed amounts and fixed costs at a fair and reasonable level.

The applicant property owner sought a declaration allowing her to remove a fence and erect locked gates on a right of way located on her property, which was used by the respondent embassy to access its rear parking lot.

The court found that the issue of the fence was res judicata due to a 1992 court order mandating its installation.

Furthermore, applying the principles of easement law, the court held that erecting locked gates would substantially interfere with the respondent's unimpeded access to its property, which had been established by historical use and previous agreements.

The application was dismissed.

The defendant, a former investment advisor, brought a motion for summary judgment to dismiss the plaintiff employer's action for breach of contract.

The plaintiff sought to recover amounts paid to settle a client's lawsuit, relying on an indemnity clause in the defendant's employment contract.

The defendant argued the claim was statute-barred under s. 18 of the Limitations Act, 2002, which imposes a two-year limitation period for contribution and indemnity claims running from the date the first alleged wrongdoer is served.

The court dismissed the motion, finding that the plaintiff's action was for breach of contract, not a claim for contribution and indemnity between wrongdoers.

Therefore, s. 18 did not apply, and the limitation period began to run when the settlement was reached, making the action timely.

The plaintiff brought a motion for summary judgment for possession of six properties and judgment on the covenants of five collateral mortgages.

The defendants opposed the motion, arguing that the transaction was part of a joint venture business arrangement with the plaintiff's principal's son, rather than a conventional mortgage, and disputed that the full $1,100,000 was advanced.

The court applied the 'full appreciation test' under Rule 20 and found no genuine issue requiring a trial for the majority of the claims.

The court held that the mortgages were valid and that most of the funds were advanced as claimed, granting summary judgment for possession and the debt, excluding a disputed $33,000 lender's fee and certain legal accounts.

The appellant appealed an order dismissing its motion to remove the respondents' lawyers of record due to an alleged conflict of interest.

The appellant argued that a 'near client' relationship was established through a telephone call and an email sharing information among franchisees defending against claims by a third-party franchisor.

The Divisional Court dismissed the appeal, finding no error in the motion judge's conclusion that the shared information was used for its intended purpose and did not establish a near client relationship.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his application for review of a refusal to issue an Order to Pay for termination pay.

The Board had refused to extend the 30-day time limit for filing the application under s. 116(5) of the Employment Standards Act, 2000.

The Divisional Court dismissed the application, finding no denial of natural justice and concluding that the Board's decision and subsequent reconsideration decisions were reasonable.

The appellant appealed a Master's decision dismissing his motion to amend his statement of claim to add two third parties as defendants.

The appellant suffered a spinal injury in a swimming pool accident when he was a minor.

The court considered the transitional provisions and discoverability rules under the Limitations Act, 2002.

The court upheld the Master's finding that the appellant did not actually discover his claim against the specific third parties prior to January 1, 2004.

Furthermore, the court held that a minor without a litigation guardian cannot be deemed to have discovered a claim under s. 5(1)(b), as minors are presumed not to know their rights.

The appeal was dismissed.

The plaintiff in a motor vehicle accident action sought to compel the defendant to disclose information contained in a written statement the defendant had provided to his insurer.

The master refused the request, but the motion judge ordered the defendant to answer.

On appeal to the Divisional Court, the court held that the information was protected by litigation privilege.

The court found that the plaintiff had alternative means to obtain the relevant facts by questioning the defendant directly during discovery.

Furthermore, the court concluded that the question was improper as it was directed solely to the defendant's credibility.

The appeal was allowed and the master's decision restored.

The appellant sought judicial review of a Licence Appeal Tribunal decision directing the Registrar to revoke his real estate broker registration.

The Tribunal found the appellant made false statements and his past conduct afforded reasonable grounds to believe he would not carry on business with integrity.

The Divisional Court found these findings reasonable but held the Tribunal's failure to address whether the renewal could be granted subject to conditions rendered the decision unreasonable.

The appeal was allowed and the matter remitted for a rehearing.