Herman J. Wilton-Siegel

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

The court awarded costs to the respondents in the appeal (IT Haven Inc. and Ryan Hunt), fixed at $25,000, inclusive of disbursements and taxes.

This decision followed an appeal from an order of the Superior Court of Justice.

This appeal concerned an insurer's duty to defend where the insurer alleged material misrepresentations and breach of policy conditions by the insured.

The insurer, Certain Underwriters at Lloyd's, London, denied defence to IT Haven Inc. and Ryan Hunt against a copyright infringement lawsuit, claiming the insured misrepresented their business operations in the insurance application.

The motion judge granted the duty to defend, refusing to consider extrinsic evidence.

The Court of Appeal dismissed the insurer's appeal, affirming the duty to defend.

The court applied a flexible approach, distinguishing this from a typical 'pleadings rule' case, and held that resolving the alleged misrepresentations would require determining contested factual issues central to the underlying litigation, which is inappropriate at the duty to defend stage.

The Court of Appeal for Ontario reversed a motion judge's decision that a debt arising from misappropriation of trade secrets would survive bankruptcy under s. 178(1)(e) of the Bankruptcy and Insolvency Act (BIA).

The motion judge erred by interpreting "false pretences" too broadly, including lying during discovery and generally morally objectionable conduct, rather than requiring a deceitful statement by which the debtor obtained property or services.

The Court clarified that s. 178(1)(e) requires a direct causal link between a deceitful statement and the obtaining of property/services.

The appeal was allowed, setting aside the declaration regarding s. 178(1)(e) and varying the stay of proceedings to allow quantification of claims for bankruptcy purposes and enforcement of injunctive relief, but not monetary judgments outside of bankruptcy.

The appellant, Stericycle ULC, appealed an order dismissing its application for a declaration that it, rather than Daniels Sharpsmart Canada Limited, was the primary supplier for Provincial Health Services Authority (PHSA) under a public tendering process.

Stericycle argued that the application judge erred in contract interpretation, allowing impermissible bid repair, and failing to properly apply the duty of good faith.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the "Six Month Provision" or the contract start date.

The court also found no breach of the duty of good faith or honest performance by HealthPRO or PHSA, as their actions were consistent with the contract's purpose and Stericycle's reasonable expectations.

The appellants appealed a decision concerning damages from an interim injunction they obtained against the respondents and compensation for work the respondents were obliged to complete under a 2010 court order.

The Court of Appeal dismissed the appeal, upholding the trial judge's assessment of damages, which included interest rate differentials and lender's amendment fees due to the injunction, and the compensation for expenditures related to the 2010 order.

The court found no palpable and overriding error in the trial judge's factual findings and deferred to his interpretation of the 2010 order.

The moving party, Aziz Elguindy, sought to reverse an order of a single judge of the Court of Appeal that refused to extend time to appeal the dismissal of a Rule 59.06 motion.

The Rule 59.06 motion aimed to set aside a trial costs order.

The Court of Appeal dismissed the motion, confirming that the dismissal of the Rule 59.06 motion was an interlocutory order, not a final order, and therefore not appealable to the Court of Appeal without leave to the Divisional Court.

This appeal addressed whether the trial judge erred in awarding eight months' damages for wrongful dismissal.

The appellant argued the trial judge improperly considered the respondent's prior service and the time it took him to find new employment.

The Court of Appeal affirmed the trial judge's decision, finding the eight-month notice period reasonable and within an acceptable range, emphasizing deference to the trial judge's assessment and the holistic application of Bardal principles.

The appeal was dismissed.

The moving party sought leave to appeal a judgment dismissing his claims for malicious prosecution, nervous shock, false imprisonment, negligence, and other collateral claims, and an extension of time to appeal that judgment.

He also sought leave to appeal a subsequent costs order of $75,000 and leave to file fresh evidence.

The Court of Appeal dismissed the motion, finding no bona fide intention to appeal within the relevant time, no explanation for the delay, and that the proposed appeal lacked merit, which would prejudice the responding parties.

The court also found no error in principle in the trial judge's costs award, noting its reasonableness given the trial length, the moving party's conduct, and unfounded allegations.

The appellant, Jo-Ann Bodnar, appealed a summary judgment order in favour of the respondent, the Estate of Peter Boban, concerning an outstanding mortgage.

The motion judge found no triable issue regarding the interest rate or the application of part performance or promissory estoppel.

On appeal, the appellant did not challenge the interest rate finding but argued that the respondent had agreed to limit its remedies to foreclosure based on a 1996 mortgage action and subsequent consents.

The Court of Appeal found no evidence to support this claim.

The appellant also raised new arguments regarding issue estoppel, cause of action estoppel, abuse of process, and laches, which were not pleaded or argued below.

The court refused leave to raise these new arguments as no reasonable explanation was provided for their late introduction and the respondent would be prejudiced.

The appeal was dismissed.

The appellant, TELUS Communications Inc., appealed a Superior Court decision regarding the constitutional validity of the Wireless Services Agreement Act 2013 (WSAA) and a class action.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the WSAA was within provincial legislative jurisdiction and was not rendered inoperative by paramountcy or interjurisdictional immunity.

The court also rejected the appellant's request to stay the class action for CRTC determination, confirming the Superior Court's jurisdiction.

Forest Grove Homes Limited appealed a Licence Appeal Tribunal decision ordering Tarion Warranty Corporation to repair three Ontario Building Code violations related to the roof of a new home owned by Elaine Ducas.

Ducas cross-appealed, seeking an order requiring Tarion to investigate and correct the underlying cause of water penetration, which the Tribunal found was likely ice damming.

The Divisional Court dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the Tribunal's factual findings regarding the building code violations, and agreeing that the statutory warranty did not require the builder to investigate the cause of the leak absent proof that a design flaw caused the ice damming.

The applicant employer sought judicial review of an arbitrator's interlocutory evidentiary ruling regarding settlement privilege in one of 11 test cases concerning employee benefits fraud.

The parties had agreed that the ruling in this test case would apply to the other ten.

The Divisional Court dismissed the application as premature, finding that the agreement to apply the ruling across test cases did not constitute exceptional circumstances justifying the fragmentation of the administrative process.

The court emphasized that labour arbitration cases should generally be decided finally before judicial review is sought.

The plaintiff appealed an order dismissing her motion to amend her statement of claim to add a utility company as a defendant after the expiry of the presumptive two-year limitation period.

The plaintiff alleged she walked into a light pole and initially sued the municipality, only later discovering the utility company owned the pole.

The Divisional Court found the Master erred in law by failing to make specific findings on when the plaintiff actually knew or reasonably ought to have known of her claim against the utility company.

The Court set aside the Master's order and granted leave to add the utility company as a defendant, noting that a trial was required to determine the limitations issue.

The tenant's appeal from an order of the Landlord and Tenant Board terminating her tenancy was previously dismissed.

The court received written submissions on costs from the respondent landlord, but none from the appellant tenant.

The court fixed costs payable to the respondent in the amount of $4,000 all-inclusive.

The applicant sought judicial review of an Ontario Labour Relations Board decision granting union certification for employees working on a federal nuclear waste remediation project.

The applicant argued that its labour relations were subject to federal jurisdiction because the project involved nuclear substances.

The Divisional Court dismissed the application, finding that the applicant was a large construction company performing a temporary contract and was not a federal undertaking itself, nor was it sufficiently integrated into the federal undertaking to trigger derivative federal jurisdiction.

A dissenting judge would have found derivative federal jurisdiction based on the federal regulatory regime governing nuclear substances.

The appellant estate appealed a trial judgment that found a funding option in a joint venture agreement for a condominium development to be legally unenforceable due to uncertainty.

The appellant also appealed the trial judge's determination that the valuation date for the sale of the respondent's shares, ordered as an oppression remedy, should be the date of the trial reasons rather than the date the proceedings commenced.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the funding option lacked essential terms and that the chosen valuation date was the fairest in the circumstances.

The Director of the Ontario Disability Support Program brought a motion to quash the respondent's application for judicial review.

The respondent sought mandamus to compel the Director to pay ODSP benefits based on a Social Benefits Tribunal order, and to review the actions of the Director's representatives who allegedly prevented her from re-applying for benefits.

The Divisional Court granted the motion to quash the portion of the application regarding the SBT order, finding it plain and obvious it could not succeed because the Director had not made a binding determination of financial eligibility.

However, the court dismissed the motion to quash the portion regarding the denial of the right to re-apply, finding it was a reviewable exercise of a statutory power of decision.

The court also struck portions of the respondent's affidavits but admitted evidence necessary to supplement the record regarding the denial of the right to re-apply.

The Union and the City both brought applications for judicial review of an arbitrator's awards concerning the discharge of an employee.

The Union challenged the arbitrator's finding that the employee breached the collective agreement by failing to provide medical certificates, arguing the relevant provision only applied to employees eligible for the illness or injury plan.

The Divisional Court dismissed the Union's application, finding the arbitrator's interpretation reasonable.

The City challenged the arbitrator's remedy awards, arguing it was denied natural justice when the arbitrator excluded evidence of the employee's pre-2012 absenteeism based on a prior settlement agreement.

The Divisional Court granted the City's application, holding that the arbitrator's interpretation of the settlement agreement was unreasonable and prevented the City from fully presenting its case on the viability of the employment relationship.

The matter of remedy was remitted to the arbitrator for a rehearing.

The tenant appealed an eviction order from the Landlord and Tenant Board for non-payment of rent.

A prior court order required the tenant to pay $5,000 as a condition of hearing the appeal, which he failed to do.

The Divisional Court found the tenant was using the appeal process to live rent-free and dismissed the appeal as an abuse of process, lifting the stay of the eviction order.

Aviva Canada Inc. sought judicial review of a FSCO Director's Delegate's order that partially rescinded an arbitration award and remitted the respondent's entitlement to non-earner benefits to a de novo hearing before a different arbitrator.

The Divisional Court dismissed Aviva's preliminary motion to admit fresh evidence, finding no exceptional circumstances.

On the merits, the Court held that the Director's Delegate reasonably concluded the Arbitrator erred in law by failing to explicitly address whether the requested insurer examination was reasonable and necessary, and by failing to address the claim for non-earner benefits prior to the scheduled examination.

The Court also found no error in remitting the matter to a new arbitrator.

The application for judicial review was dismissed.