James C. Kent

The appellants appealed a mistrial ordered by the trial judge in a civil fraud proceeding within a matrimonial context.

The trial judge declared a mistrial after thirteen days of evidence, citing the impact of extensive delay as the trial would have to continue on an installment basis.

The Divisional Court dismissed the appeal, finding the trial judge properly exercised her discretion and her decision was entitled to great deference.

The court provided directions for the new trial to minimize further delay, including preserving the evidence and rulings from the mistrial.

The appellant father appealed the dismissal of his motion to change child and spousal support.

He argued the trial judge erred in finding the children did not spend 40% of their time with him and in her assessment of his income.

The Divisional Court dismissed the appeal, finding the trial judge made no palpable and overriding error in her factual findings regarding the parenting schedule, the imputation of income, and the lack of a material change in circumstances.

The appellant employer appealed a trial decision finding that the termination clause in the respondent's employment contract was void.

The clause provided for base salary during the notice period but excluded pension contributions and a car allowance, contrary to the minimum requirements of the Employment Standards Act, 2000.

The Divisional Court upheld the trial judge's finding that the clause was void and could not displace the common law presumption of reasonable notice.

The appeal was dismissed.

The appellant franchisee appealed a trial decision dismissing its action against the respondent franchisor for alleged breaches of disclosure obligations under the Arthur Wishart Act.

The trial judge found no material change in the franchisor's business operations between the original 1996 agreement and the 2001 renewal, and concluded the appellant failed to mitigate damages by abandoning the franchise.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or assessment of damages.

In a dispute arising from four leases and one rental agreement, the court determined the defendant's indebtedness after rejecting the plaintiff's calculations of buyout provisions and administrative fees and disallowing insurance charges where the defendant had proven coverage.

The court accepted the defendant's calculation of outstanding indebtedness subject to a further deduction for improper insurance charges, resulting in a net amount owing of $42,101.47.

On prejudgment interest, the court selected the date of the last payment as the date of default and enforced the contractual interest rate of 24% per annum.

Funds previously paid into court were ordered released to the plaintiff and credited against the amount owing.

In a trial arising from a share purchase agreement for a campground business, the plaintiff alleged the vendors failed to disclose the full amount of prepaid rentals and deposits collected before closing.

The court found the defendants selectively disclosed partial information and actively withheld important information concerning prepaid rentals, amounting to intentional misrepresentation.

Relying on the duty of honest performance articulated in Bhasin v. Hrynew, the court held the contractual 12-month warranty limitation did not bar the claim.

Judgment was granted to the plaintiff for $73,856.00, with interest and costs to be addressed if not agreed.

A dispute arose among partners in a long‑standing farming partnership following notice of termination given under the partnership agreement.

The court was asked to interpret provisions of the partnership agreement concerning termination, partner draws, and occupation of homes situated on partnership property.

The court held that the partnership terminated six months after written notice and declared that all partnership draws should have ceased upon termination.

The court further determined that partners occupying houses on the farm were required to pay fair market value rent from the date of termination while winding up the partnership.

Orders were made directing the sale of farm equipment, cattle, and the farm property within specified timelines.

The appellant appealed a trial decision finding it liable for passing off after it registered a domain name similar to the respondent's and redirected internet traffic to its own competing website.

The trial judge awarded $10,000 in compensatory damages but declined to award punitive damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent suffered actual or potential damage.

The court also upheld the $10,000 damages award as a reasonable approximation of the respondent's losses.

The respondent's cross-appeal for punitive damages was also dismissed.

The successful applicant in a labour arbitration judicial review sought partial indemnity costs exceeding $30,000.

The Divisional Court found this amount excessive for a matter that was not overly complex.

The court fixed costs at $7,500, which it deemed to be within the accepted range for such proceedings.

The applicants sought judicial review of a decision by the Ontario Police Civilian Commission finding the applicant police officer guilty of insubordination.

The officer had failed to comply with an order from the Chief of Police, arguing that a portion of the order requesting tax information was unlawful.

The Divisional Court dismissed the application, holding that even if the tax information request was unlawful, the officer was still obliged to obey the remaining lawful aspects of the order, and his failure to do so constituted insubordination.

The applicant union sought judicial review of a labour arbitration award that denied a grievor's claim for a pension after 31 years of continuous employment.

The majority of the arbitration board had found that the grievor waived his right to pension benefits and that the doctrine of laches barred the grievance.

The Divisional Court held that the arbitration board's decision was unreasonable.

The collective agreement and pension plan documents mandated enrollment for full-time employees and did not permit waiver.

Consequently, the employer bore the obligation to ensure enrollment, and the equitable defence of laches could not apply where waiver was legally impermissible.

The application was granted, the award quashed, and the matter remitted to the arbitration panel.

The plaintiffs were partially successful at trial, establishing that their mother breached her fiduciary duty through physical abuse, but failing to establish claims regarding sexual abuse against her and their grandparents.

In this costs decision, the court awarded the plaintiffs substantial indemnity costs of $62,899.60 against the mother to condemn her assaultive behavior, despite their limited success.

The successful grandparent defendants were awarded modest partial indemnity costs of $13,000.

Pre-judgment interest was fixed at 5 percent, but limited to a 5-year period due to the plaintiffs' delay in prosecuting the claim.

The applicant union sought judicial review of two Ontario Labour Relations Board decisions that allowed a competing union's certification application to proceed despite being filed early.

The applicant argued the Board lacked jurisdiction to alter absolute statutory time limits.

The Divisional Court dismissed the application, finding the issue was not one of true jurisdiction but of statutory interpretation within the Board's core expertise.

Applying a reasonableness standard, the Court held the Board's exercise of discretion under s. 111(3) of the Labour Relations Act, 1995 was justified, transparent, and intelligible given the unique factual matrix.

The applicant corporation brought a motion to set aside a previous order and grant leave to be represented by a non-lawyer officer and director in a Small Claims Court appeal.

The court noted that the proposed representative was a full-time employee and officer of the corporation, had prepared all the materials, and the appeal involved less than $2,000.

Given the contextual analysis and new information, the court granted the motion.

The applicant sought judicial review of a decision by the University of Toronto Appeal Division recommending his expulsion for academic offences involving forged transcripts.

The applicant argued the Appeal Division failed to properly weigh mitigating factors, including his remorse, first-offender status, and expert evidence.

The Divisional Court applied a reasonableness standard of review, finding that the Appeal Division's decision on penalty was entitled to high deference.

The court concluded the Appeal Division's reasons were justified, transparent, and intelligible, and dismissed the application.

The applicant, a public interest litigant, sought leave to appeal an Ontario Municipal Board decision but the motion was dismissed as abandoned after a time extension was refused.

The respondents sought costs.

The court held that public interest litigants must adhere to procedural rules and awarded costs to the respondents for the procedural motion.

For the leave motion itself, the court declined to award costs to the municipality, recognizing both parties acted in the public interest, but awarded partial indemnity costs to the private landowner respondents who were forced to participate.

The defendants brought a motion under Rule 56.01(1)(a) of the Rules of Civil Procedure seeking an order requiring the plaintiff, a resident of the United States, to post security for costs in a wrongful dismissal action.

The court considered the plaintiff’s financial circumstances, the stage of the litigation, and the apparent merits of the claim.

Evidence indicated the plaintiff had limited financial resources and that his financial situation may have been affected by the defendants’ conduct in relocating him to Canada for employment.

The court found the claim possessed some merit and that requiring substantial security could effectively terminate the litigation and undermine access to justice.

In the circumstances, the court declined to order security for costs.

The plaintiffs brought a civil action arising from a motor vehicle accident involving a vehicle owned by one defendant and driven by her daughter.

The central issue was whether the registered owner had given express or implied consent for the daughter to possess and operate the vehicle at the time of the accident under s. 192 of the Highway Traffic Act.

After reviewing jurisprudence on implied consent and the principles governing possession of motor vehicles, the court found the daughter was not a co-owner and had taken the vehicle without the owner’s consent.

Considering the daughter’s understanding of licence restrictions, the circumstances under which she took the keys while her parents slept, and the owner’s evidence regarding strict limitations on use, the court held that implied consent had not been established.

The action against the vehicle owner was therefore dismissed.

The respondent father brought a motion to change a final divorce order regarding child support and the division of air miles.

The court found the air miles issue moot due to a clawback and transfer costs.

The court ordered the Family Responsibility Office to credit the father for two direct payments of $600 and to reduce arrears for one child who was only attending school part-time.

Regarding the adult disabled child, the court declined to terminate support, ordering it to continue pending the outcome of the child's application for Ontario Disability Support Program benefits.

The defendants moved for judgment under Rule 49.09 of the Rules of Civil Procedure based on the plaintiffs’ accepted offer to settle.

The plaintiffs had made a written offer prior to trial that remained open until one minute after the commencement of trial, and the defendants accepted the offer months later after the trial had been adjourned.

The responding parties argued the court should exercise its discretion not to enforce the settlement because significant additional litigation expenses had been incurred after the adjournment.

The court held that discretion to refuse judgment on an accepted offer should be exercised only in rare circumstances and that the facts did not justify departing from the policy favouring enforcement of settlements.

Judgment was therefore granted in accordance with the accepted offer.