James A. Ramsay

The insurer appealed a Licence Appeal Tribunal decision regarding attendant care benefits for a catastrophically injured insured.

The issue was whether, for accidents occurring before June 3, 2019, the Harmonized Sales Tax (HST) payable for attendant care services was included within the $6,000 monthly and $1,000,000 total maximum limits under section 19 of the Statutory Accident Benefits Schedule, or payable in addition.

The Divisional Court held that the language of section 19 is unambiguous and that HST must be paid as part of the attendant care benefit, subject to the maximum limits.

The appeal was allowed and the LAT decision was set aside.

The applicant moved to quash an interim control by-law and its extending by-law enacted by the respondent municipality, alleging illegality and bad faith.

The applicant also claimed damages for misfeasance in public office and misrepresentation.

The court found that the emergency meeting where the by-law was enacted met procedural and statutory requirements, including being open to the public.

The court held that the municipality's actions, including extending the by-law due to delays in adopting the Official Plan, were justified and did not demonstrate bad faith.

The motion was dismissed.

The defendants, based in Quebec, moved to set aside service of the statement of claim outside Ontario and to stay the proceeding on the basis of forum non conveniens.

The plaintiffs, based in Ontario, sued for breach of contract and warranty regarding allegedly defective spas.

The court found that the contract was made in Ontario through the plaintiffs' continuous acceptance of terms, justifying service outside Ontario under Rule 17.02.

The court also declined to stay the proceeding, finding that while Quebec had jurisdiction over a related action, it was not clearly a more appropriate forum for this specific dispute.

The motion was dismissed.

The plaintiff sued the defendants for assault and battery after the defendant Broughton mistakenly identified the plaintiff as a man who had broken into the defendants' home earlier that morning.

The defendant Broughton confronted the plaintiff on the street, pushed him down, and beat him severely, causing a fractured eye socket.

The court found the plaintiff credible and concluded he was not the intruder.

The action against the defendant Broughton was allowed, with damages fixed at $20,000 for pain and suffering plus OHIP subrogated damages.

The action against the co-defendant was dismissed.

The accused was charged with aggravated assault following the hospitalization of his two-month-old son with severe injuries, including multiple bone fractures and brain trauma.

The Crown relied on expert medical evidence to argue the injuries were inflicted by intentional force.

The defence presented competing expert testimony suggesting the injuries could have resulted from a stroke, infection, and metabolic bone disease.

The court found the defence experts raised a reasonable doubt regarding the cause of the injuries and acquitted the accused.

Following a successful motion for summary judgment, the plaintiff sought full indemnity costs of $41,852.77.

The court found that the contract between the parties entitled the plaintiff to full indemnity for losses, including legal fees.

The court also noted it would have awarded full indemnity regardless, due to the defendant's high-handed and dishonest conduct in appropriating funds.

The defendant was ordered to pay the full amount sought.

The applicant, C.I.D., sought a declaration that its sublease was terminated by operation of law when the head landlord, Correl, changed the locks on the premises due to the head tenant, Garnier's, non-payment of rent.

C.I.D. also sought damages.

Garnier argued an oral rent deferral agreement existed with Correl, making the termination unlawful, and sought relief from forfeiture.

The court found that Correl lawfully terminated the head lease by changing the locks, which automatically terminated the sublease.

The court rejected Garnier's claim of an oral agreement and denied relief from forfeiture due to unclean hands.

The sublease was declared terminated, and damages were referred to a Master.

The appellants appealed an arbitral award that found they had erected screens on exclusive-use common elements without prior board consent, contrary to condominium rules, and ordered their removal.

The appeal also concerned the arbitrator's costs award.

The Superior Court of Justice upheld the arbitrator's decision, finding the appellants were in breach of the Condominium Act, Declaration, and Rules.

The court dismissed both the appeal and the cross-appeal on costs, affirming the arbitrator's discretion.

The defendant physician in a medical malpractice action moved to strike the jury notice due to trial delays caused by the COVID-19 pandemic.

The defendant argued that the 11-year delay and the stress of preparing for trial multiple times warranted proceeding by judge alone virtually.

The plaintiff opposed, citing significant physical and technological challenges with participating in a virtual trial due to his catastrophic spinal cord injuries.

The court dismissed the motion, finding the defendant failed to prove justice would be better served by dispensing with the jury, and adopted a 'wait and see' approach given the anticipated resumption of civil jury trials.

In two consolidated construction lien actions, both parties brought motions regarding procedural steps.

The plaintiff sought to amend a prior order to prevent the defendants from advancing new claims for deficiencies in their Scott schedules without leave, arguing the defendants failed to properly particularize their counterclaim.

The court granted the plaintiff's motion, finding the defendants had sufficient time to define their counterclaim.

The court also ordered the plaintiff to provide particulars of its damages claim within 30 days, but dismissed the defendants' request for further productions.

The plaintiff sued for damages, claiming an equitable life estate or option to purchase a residential property based on an unwritten agreement.

The plaintiff had originally owned the property but lost it to foreclosure, after which he remained as a tenant under successive owners.

The court found the plaintiff's claims to be entirely fabricated and contradicted by documentary evidence, including a lease in which he explicitly released all claims to the property.

The action was dismissed.

The plaintiff brought a motion for summary judgment seeking damages for breach of an employment contract, claiming entitlement to a 1.5% equity stake in the defendant limited partnership.

The parties disputed the nature of the agreement, the entity in which the equity was held, and the value of the shares, relying on conflicting pre-employment emails and formal documents.

The court dismissed the motion, finding that the conflicting evidence and lack of valuation data created genuine issues of credibility and fact that required a trial.

The applicant sought an order extending the time to file her general election return under the Canada Elections Act.

The initial delay was caused by a family illness and the pandemic, and a subsequent attempt to file within an extended deadline failed due to a technical error on the website, resulting in the return being one day late.

The respondent did not oppose the application.

The court found the failure to file was due to inadvertence and not a lack of due diligence, and granted the extension.

The plaintiff, Kim Lemyre, sought costs for her successful wrongful dismissal action.

The defendants opposed, arguing excessive time spent by counsel, prior costs paid, and that the plaintiff's net recovery after tax was less than her offer to settle.

The court rejected the defendants' arguments, finding the time spent reasonable, the prior costs already accounted for, and that Rule 49 focuses on damages won, not tax consequences.

The court emphasized the importance of incentivizing employers to settle valid claims.

Costs were awarded to the plaintiff.

The applicant sought partial indemnity costs of approximately $42,000 following her successful application to recognize an easement and defence of a counterapplication.

The respondents argued for a costs award of $10,000, relying on a prior settlement offer.

The court rejected the respondents' reliance on the settlement offer, noting it would have left the applicant responsible for her own costs and restricted in her use of the right of way.

The court awarded the applicant $31,500 in all-inclusive costs.

The appellant was injured in a motor vehicle accident and received income replacement benefits until the insurer refused further benefits.

The appellant applied to the Licence Appeal Tribunal to dispute the refusal, but the adjudicator dismissed the application as being outside the two-year limitation period.

On appeal, the appellant argued the refusal was invalid because the insurer failed to provide copies of independent assessment reports to her treating practitioner, as required by section 37(5) of the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, holding that while the insurer breached section 37(5), this omission did not invalidate the clear and unequivocal refusal of benefits, and the limitation period had expired.

The applicant was terminated without cause and sought a determination of his rights under his employment contract.

The contract stipulated a fixed notice period but was silent on mitigation.

The court held that the applicant had no duty to mitigate his damages, as the fixed notice provision displaced the common law.

Applying the contra proferentem rule, the court resolved an ambiguity in the termination clause to award 11 months' severance.

The court also ordered the severance to be paid as a lump sum and awarded the applicant a project bonus of $177,500 based on the agreed internal rate of return.

In a divorce action, the applicant brought a motion to find the respondent in contempt for failing to comply with a prior disclosure order.

The respondent brought a cross-motion for additional disclosure from the applicant.

The court dismissed the contempt motion, finding that the respondent's delayed and partially incomplete disclosure was not a wilful omission.

The court also dismissed the respondent's disclosure motion, noting that most requests were either answered or unnecessary, and left the remaining items for a future settlement conference.

The applicant and respondents are neighbours with adjoining properties on Lake Erie.

The applicant sought a declaration that she had an implied or prescriptive appurtenant easement over a portion of the respondents' property to access the beach, after the respondents built fences blocking her path.

The court found that the applicant had established an easement by prescription through continuous, open, and peaceful use for over 20 years.

The court rejected the respondents' arguments that the easement had been extinguished by operation of law due to a change in purpose or abuse by the applicant.

The respondents were ordered to remove the obstructing fences.

The appellant, a care home operator, unlawfully evicted a non-verbal adult with severe autism without following the procedures in the Residential Tenancies Act.

The Landlord and Tenant Board ordered the tenant's reinstatement.

The appellant appealed to the Divisional Court, arguing procedural unfairness and that the Board lacked statutory authority to order reinstatement under s. 31(1)(f) of the Act.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness and holding that a broad interpretation of the Act's remedial provisions permitted the Board to order reinstatement to protect vulnerable tenants from unlawful eviction.