Jacob R.W. Damstra

The applicant appealed the municipality's refusal of an application to amend the zoning by-law to permit a sign shop establishment.

A Case Management Conference was held to organize the hearing.

The Tribunal scheduled a two-day merit hearing to proceed by video and directed the exchange of documents.

The appellant brought a motion to determine whether its proposed redevelopment of a former golf course into a 44-lot residential subdivision is located within a 'Settlement Area' under the Growth Plan, Provincial Policy Statement, and the City of Kawartha Lakes Official Plan.

The City argued that the lands were not delineated as a Settlement Area in its Official Plan and therefore did not meet the definition.

The Tribunal found that the definition of 'Settlement Area' should be read disjunctively, and that the subject property qualifies as a Rural Settlement because it is a built-up area where development is concentrated, has a mix of land uses, and is identified in the Official Plan.

The motion was granted, and the issue was removed from the Issues List.

The appellant, Anna Marlena Butryn, appealed a summary judgment order enforcing minutes of settlement in mortgage enforcement proceedings.

She argued she signed the minutes under undue influence and duress from her husband, John Chetti, and without independent legal advice.

The Court of Appeal upheld the motion judge's decision, finding no evidence the respondent had knowledge of the alleged undue influence/duress, that the minutes of settlement provided significant benefits to the appellant, and that she was represented by experienced litigation counsel, making independent legal advice from a separate lawyer unnecessary.

The court reiterated that a spousal relationship does not automatically create a presumption of undue influence requiring third-party inquiry unless coupled with a manifestly disadvantageous transaction.

The applicants appealed the municipality's refusal to approve applications to permit a rural wedding and event venue as an agri-tourism use.

At the first Case Management Conference, the County of Elgin was granted participant status.

The applicants brought a motion on consent to adjourn the matter sine die to allow the parties to engage in resolution discussions or seek Tribunal-led mediation.

The Tribunal granted the adjournment.

The appellants, Tyson Rogerson and his adoptive parents, appealed the dismissal of their medical malpractice action against two physicians, Dr. Elyse Savaria and Dr. Nkiruka Nwebube.

The appellants argued that the physicians breached their duty of care by failing to report a suspected risk of harm to Tyson to the Children's Aid Society (CAS) under s. 72 of the Child and Family Services Act, which they contended would have prevented Tyson's catastrophic brain injury.

The Court of Appeal upheld the trial judge's findings that the physicians did not breach the standard of care in failing to report, and even if there was a breach, the appellants failed to prove causation, as the CAS would not have intervened in a way that would have prevented the injury.

The appeal was dismissed.

The estate trustee appealed a costs order that denied her indemnification for legal expenses incurred while representing the estate in a dependent's relief application.

The Divisional Court allowed the appeal, finding the application judge erred in principle and failed to provide adequate reasons for denying costs.

Applying the framework for blended costs in estate litigation, the court awarded the estate trustee full recovery of her costs on a substantial indemnity basis, with the majority payable by the respondent whose egregious conduct unnecessarily increased the litigation costs, and the balance payable by the estate.

This appeal arose from a dispute among siblings concerning the care and property of their nonagenarian mother.

The appellant challenged the application judge's decision, which declared the mother incapable, validated existing powers of attorney, and ordered the appellant to account for funds held on a resulting trust.

The appellant alleged procedural unfairness, including failure to consider his materials, denial of an adjournment, and improper dismissal of his counter-application, and sought leave to appeal the costs order.

The Court of Appeal dismissed the appeal, finding no reversible error or procedural unfairness, and denied leave to appeal costs, affirming the application judge's discretion.

This appeal concerned the interpretation of a 1975 cost-sharing provision in a Subdivision Agreement between a developer's assignee (appellant) and a municipality (respondent).

The appellant sought payment for infrastructure costs from the municipality, arguing that the provision was triggered by a new subdivision on adjacent lands.

The application judge found that the cost-sharing obligation was only triggered if the adjacent lands derived a benefit from the appellant's infrastructure, and no such benefit was proven.

The Court of Appeal upheld this interpretation, agreeing that the agreement, when read holistically and with commercial sense, required a benefit to be conferred for the cost-sharing to apply.

The appeal was dismissed, and costs were awarded to the respondent.

This appeal arose from a priority dispute between insurance companies concerning accident benefits coverage following a motor vehicle accident.

The appellant, Trafalgar Insurance Company, appealed an arbitration decision that found the injured party was not insured by Economical Insurance Company and not entitled to Statutory Accident Benefits from them.

The Superior Court dismissed the appeal, upholding the arbitrator's findings that the vehicle in question was not an 'owned automobile' under Economical's standard Ontario Garage Policy (OAP 4) because its use (leased to a rental company) was outside the scope of the insured's business and was specifically excluded by the policy.

The court also affirmed that section 233(2) of the Insurance Act did not apply as the issue was the vehicle's insured status, not a breach of contract or misrepresentation.

The Court of Appeal for Ontario heard appeals regarding a flooded access road.

The Township of Georgian Bluffs and the Ministry of Transportation appealed a lower court decision that found the road public, obligated the Township to maintain it, and ordered the Ministry to restore culverts and indemnify the Township.

The Crown's appeal was allowed due to procedural unfairness, as no relief was sought against the Ministry in the original application.

The Township's appeal was dismissed, affirming the public nature of the road based on historical statute labour and common law dedication and acceptance, and upholding its obligation to restore the road.

The applicant developer sought to enforce a cost sharing provision in a 1975 subdivision agreement against the respondent municipality, arguing the municipality was required to collect a proportionate share of servicing costs from a new adjacent development.

The court dismissed the application, finding that the cost sharing obligation was only triggered if the new development connected to or benefited from the installed services, which it did not.

The court also dismissed the applicant's alternative claim for unjust enrichment, holding that the subdivision agreement provided a juristic reason for the municipality's benefit.

In a medical malpractice action arising from catastrophic injuries inflicted on a newborn by his biological mother, the plaintiffs alleged that a family physician and a pediatrician negligently failed to report child protection concerns under s. 72 of the Child and Family Services Act.

The court found that the family physician conducted adequate mental health and coping assessments, and that neither physician had reasonable grounds to suspect the infant was a child in need of protection.

Although the family physician breached the standard of care by not providing the pediatrician with a fuller mental health history, that breach had no causal consequence.

The court further held that, even if a report had been made, the Children's Aid Society would likely have treated the matter as low risk and would not have intervened in time to prevent the assault.

The action was dismissed, with damages nonetheless fixed by agreement at $13,250,000 under Rule 7.08.

The appellants appealed the assessments in an Engineer's Report prepared under section 78 of the Drainage Act for the improvement of the Dell Drain Outlet.

The proposed work involved extending the outlet to address severe gully erosion on downstream properties.

The Tribunal found that the erosion was primarily caused by water flowing from upstream lands and that the drain currently lacked a sufficient outlet.

The Tribunal amended the Schedule of Assessment, determining that the costs should be apportioned as 26% Benefit to the adjacent downstream properties and 74% Outlet Liability to the upstream lands and roads, and assessed a Special Benefit to lands subsequently connected to the drain.

The appellants, Trafalgar Insurance and Economical Insurance, appealed an arbitrator's decision in a priority dispute regarding statutory accident benefits.

The arbitrator had found that Arch Insurance was not the insurer of the vehicle involved in the accident because the vehicle was not owned or leased by Arch's named insured, despite being mistakenly listed on a fleet schedule.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error or error of law in the arbitrator's conclusion that the vehicle did not qualify as a 'described vehicle' under the OPCF 21A endorsement.

A related costs appeal was also dismissed as premature.

This decision addresses a request by the respondent (defendant in the original action) to limit the scope of a new trial on liability and damages, which had been ordered by the Court of Appeal in a prior decision.

The court dismissed the request, emphasizing that the evidence and issues were complex, interrelated, and interdependent.

Limiting the trial to specific issues would risk artificial credibility assessments and unreliable fact-finding.

The appellants appealed the dismissal of their medical malpractice action against an obstetrician following a catastrophic birth injury.

The infant suffered acute near-total oxygen deprivation prior to birth, resulting in severe permanent brain damage.

At trial, the judge dismissed the action, finding no breach of the standard of care and no causation.

On appeal, the Court of Appeal found the trial judge's reasons were legally inadequate regarding causation and one of the standard of care issues (the failure to complete the delivery with Kielland forceps).

The reasons failed to explain critical findings, preventing meaningful appellate review.

The appeal was allowed and a new trial ordered on all issues of liability and damages.

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 appellant, Gordon Dunk Farms Ltd., appealed a summary judgment decision that found its action for negligence and breach of contract against the respondents (designers, contractors, and concrete workers) was statute-barred due to the expiration of the limitation period.

The action stemmed from the collapse of a hog barn.

The motion judge found that the appellant's principals knew or ought to have known the material facts constituting their claim by May 12, 2014, more than two years before the action was commenced on May 24, 2016.

The Court of Appeal affirmed that a "claim" under the Limitations Act, 2002, does not require knowledge of every specific act or omission, but rather sufficient facts to draw a plausible inference of liability.

The appeal was dismissed, confirming the action was statute-barred against all respondents.

The applicant minor hockey association sought an interlocutory injunction to prevent the respondent governing body from re-allocating minor hockey programming contrary to a 2018 agreement.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried regarding whether reasonable notice of termination was required, the applicant failed to establish irreparable harm.

The court found that any financial losses were quantifiable and compensable in damages, and the balance of convenience did not favour granting the injunction.

The motion was dismissed.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.