Hugh N. MacDonald

The applicant requested the cancellation of a 'pending proceedings' notation from the abstracts of 81 mining claims held by the respondent, following the dismissal of the underlying Superior Court proceedings.

The applicant also requested an exclusion of time and an extension of the deadline to perform and report assessment work on the claims.

The Ontario Land Tribunal granted the requests, cancelling the notation, excluding the time the proceedings were pending, and extending the deadline for assessment work to December 31, 2024.

Skead Holdings Ltd. requested the Ontario Land Tribunal to cancel a 'pending proceedings' notation on 81 mining claims held by Fancamp Exploration Ltd., following the dismissal of a related Superior Court proceeding.

Skead also requested an exclusion of time and an extension of time to perform assessment work on the claims.

With the consent of Fancamp, the Tribunal granted the requests pursuant to sections 64(4.1) and 64(5) of the Mining Act, cancelling the notation, excluding the time the proceedings were pending, and extending the deadline for assessment work to December 31, 2024.

Skead Holdings Ltd. requested an order under s. 64(2.2) of the Mining Act confirming that a proceeding is pending before the Ontario Superior Court of Justice against Fancamp Exploration Ltd. regarding a dispute over a 2019 agreement for the sale of mining claims.

The Tribunal found that a proceeding was indeed pending and related to Skead's claimed interest in 81 mining claims currently held by Fancamp.

The Tribunal ordered the Provincial Mining Recorder to make a note of 'Pending Proceedings' on the abstracts of the 81 mining claims.

The applicant sought judicial review of a housing cooperative's decision that she was no longer eligible for a Rent-Geared-to-Income subsidy after refusing an offer for a one-bedroom unit.

The applicant argued the cooperative lacked the delegated authority to make this determination.

The Divisional Court dismissed the application, finding that the service manager had expressly delegated the authority to determine eligibility and consider extenuating circumstances to the cooperative.

The court also found the cooperative's decision that the applicant failed to establish extenuating circumstances was reasonable.

The plaintiff sued the estate of a deceased businessman, alleging he made an oral personal promise to pay a $330,432 debt owed to the plaintiff by an insolvent company he controlled.

The plaintiff claimed it provided consideration by forbearing from litigation and continuing to supply parts.

The court dismissed the claim, finding that the deceased only explained his intention to recapitalize the company from the sale of another business, which did not constitute a binding contract or personal guarantee.

Furthermore, the court found no consideration was given, as the deceased never requested forbearance from litigation.

The complainant challenged the employer's refusal to grant his request to exit the Ontario Public Service with enhanced severance benefits under the Voluntary Exit Program (VEP).

The employer brought a preliminary motion to dismiss the complaint for lack of jurisdiction, arguing the VEP was not an existing term or condition of employment.

The Public Service Grievance Board agreed, finding that the VEP announcement was a pre-contractual representation and did not become a binding term of employment until an application was approved.

The Board concluded it lacked jurisdiction to review the fairness of the decision-making process or to create new terms of employment, and dismissed the complaint.

The respondent, a flooring contractor, was hired by the appellant general contractor to install sheet vinyl flooring at a long-term care facility.

When the respondent identified deficiencies in the sub-floor structure that prevented proper installation, the appellant refused to remedy the defects and instead directed the respondent to attempt a temporary fix.

After the temporary fix failed and the project architect required the flooring to be removed and replaced, the respondent refused to continue without payment for previous work and relief from warranty obligations.

The appellant hired another contractor to complete the work and counterclaimed for abandonment.

The trial judge found the respondent unable to perform due to sub-floor defects that were the appellant's responsibility to remedy, awarded damages for breach of contract, and dismissed the counterclaim.

The appellant appealed, and the respondent cross-appealed on damages assessment.

The defendant brought a motion for the production of notes and records from the plaintiff's counsel's file.

The plaintiff had previously moved to amend his statement of claim to withdraw an admission that he resigned, alleging his counsel made a drafting error and that he had actually been terminated.

The court found that by putting his communications with his counsel into issue to explain the alleged error, the plaintiff waived solicitor-client privilege over those specific communications.

The motion was granted in part, ordering the production of direct communications between the plaintiff and his counsel regarding how his employment ended.

The court awarded costs to the plaintiff, Dan McCabe, following a trial where McCabe was found to be substantially more successful than the defendant, Finn Way General Contractor.

The plaintiff was awarded $49,451.44, while the defendant received just over $500 on its counterclaim.

The court considered the purposes of costs awards, the complexity of the issues, the parties' settlement offers, and the conduct of the litigation, including the defendant's unreasonable position in not seeking resolution.

Despite some protraction of proceedings by plaintiff's counsel, the defendant's lack of interest in settlement warranted a costs award.

A fair and reasonable award was fixed at $75,000 on a partial indemnity basis.

A subcontractor sued the general contractor for breach of contract after flooring work on a hospital project became impossible due to defects in the underlying sub-floor structure.

The subcontractor alleged the contractor failed to provide a stable and properly prepared substrate, causing telegraphing and other failures in installed sheet vinyl flooring.

The contractor counterclaimed for completion costs after terminating the subcontractor and hiring a replacement.

The court held that a contractor has an implied obligation to provide a site capable of receiving the subcontractor’s work and found the sub-floor defects, including structural movement and improper preparation, prevented successful installation.

The subcontractor did not abandon the contract; rather, the contractor breached by failing to remedy known defects and insisting the work proceed.

Damages were awarded to the subcontractor with limited set‑off for specific materials.

The appellant sub-tenant appealed a trial judgment ordering him to pay $18,060.42 in realty tax arrears to the respondent Township.

The appellant argued that the sublease did not permit retroactive tax collection, that the Township lacked authority to sue for the arrears, and that the claim was barred by the doctrine of laches.

The Court of Appeal dismissed the appeal, finding that the sublease clearly made the appellant responsible for all applicable realty taxes, the Township sued properly under the contract, and the delay in assessment was caused by the Municipal Property Assessment Corporation rather than the Township.

After a trial concerning a commercial lease dispute, the plaintiff municipality obtained judgment for damages and the defendant’s substantial counterclaim was dismissed.

The court addressed the issue of costs following written submissions from the plaintiff and no submissions from the defendant.

The court considered the discretion under s. 131 of the Courts of Justice Act, the proportionality principle, and the effect of Rule 76 of the Rules of Civil Procedure regarding simplified procedure.

Although the plaintiff sought more than $68,000 in partial indemnity costs, the court held that the amount was disproportionate to the recovery and complexity of the case.

The court fixed costs at $40,000 inclusive of HST and disbursements.

Shareholders applied for a declaration that a respondent shareholder was out of time to commence arbitration under a shareholder agreement governing the purchase of shares after termination of employment.

The court held that it had jurisdiction to determine the limitation period issue notwithstanding the arbitration clause.

Applying the discoverability principles under the Limitations Act, 2002 and s. 52 of the Arbitration Act, 1991, the court concluded the limitation period began when the value of the shares was determined and the applicants refused payment, not when the employment relationship ended.

The arbitration had been commenced within the two-year limitation period by written notice demanding arbitration.

The court declined to interfere with the appointment of the arbitrator or the arbitral procedure.

Following a trial where the defendants were ordered to repay $25,000 to the plaintiff estate, the defendants declared bankruptcy.

The plaintiff sought a declaration that the debt survived the bankruptcy under section 178(1) of the Bankruptcy and Insolvency Act.

The court found it had jurisdiction to hear the matter as no formal order had been entered.

The court held that the defendants were acting in a fiduciary capacity when they held the deceased's money and that their failure to return it constituted misappropriation under s. 178(1)(d).

The debt therefore survived the bankruptcy.

Costs were awarded to the plaintiff on a substantial indemnity basis in the amount of $43,249.62.

The appellants appealed a wrongful dismissal judgment, arguing the respondent failed to mitigate his damages by refusing an oral offer of re-employment and missing a job interview.

The Court of Appeal upheld the trial judge's findings that the respondent's request for a written offer and legal advice was reasonable, and his overall mitigation efforts were diligent.

The court also declined to interfere with the 22-month notice period and the trial costs award.

The appeal was dismissed.

In an application alleging discrimination in employment based on disability, the respondents sought production of unredacted medical records from the applicant's treating neurologist.

The applicant had previously provided redacted records.

The Tribunal ordered the applicant to produce the unredacted clinical notes and records, and to request a full consultation report from the neurologist regarding the applicant's ability to work in an accommodated workplace.

The hearing was adjourned to allow for production and potential independent medical assessments.

The applicant, who sustained catastrophic injuries in a motor vehicle accident, sought production of the insurer's complete accident benefits file and internal policy manuals regarding attendant care benefits.

The insurer objected to producing documents created after the date of the application for mediation, claiming privilege.

The arbitrator ordered the insurer to produce its complete file up to the date the application for arbitration was registered, finding that the insurer failed to establish litigation privilege for that period and that the applicant was entitled to disclosure of the insurer's thought process regarding a section 42 medical examination.

The arbitrator declined to order broad production of policy manuals, restricting it to those specifically referenced in the produced file or those the insurer intends to rely on at the hearing.