James H. Bennett

The appellant appealed a trial judge's finding that the parties separated on January 1, 2020, rather than March 14, 2020, for the purposes of equalization and spousal support.

The appellant argued the trial judge made palpable and overriding errors of fact and misapplied the Kassabian factors.

The Court of Appeal dismissed the appeal, holding that the trial judge's factual findings were available on the record and that he properly treated the Kassabian factors as guiding principles rather than a checklist.

The applicants sought to rescind an agreement of purchase and sale for a condominium unit after the developer added a fourth floor to the building, arguing this was a material change under the Condominium Act, 1998.

The court found the addition of the fourth floor was objectively a material change, but held the applicants lost their statutory right to rescind by failing to act within the 10-day period prescribed by the Act.

The court also rejected the argument that the change constituted a fundamental breach at common law, as the applicants would still receive the same unit as described in the agreement.

The application was dismissed and costs awarded to the respondent.

The Respondent brought a motion to strike the Applicant's Motion to Change (MTC) due to the Applicant's long-standing non-compliance with multiple court orders, including significant arrears in child and spousal support ($90,868.06) and an unpaid costs award ($159,533.73) from a previous trial.

The Applicant, who had declared bankruptcy but was undischarged, also failed to provide adequate disclosure regarding his employment changes.

The court applied the three-step test for striking pleadings and found the Applicant's conduct to be egregious and exceptional, demonstrating a blatant disregard for court orders and a "scorched earth" litigation approach.

The court granted the Respondent's motion, striking the Applicant's MTC in its entirety and imposing strict conditions for any future motions, emphasizing the need for the Applicant to demonstrate genuine compliance with existing orders and good faith.

The applicant moved to set aside an order abandoning her spousal support claim, which was made during a settlement conference.

She alleged that her former counsel pressured her due to his unpreparedness and that her anxiety disorder impacted her decision.

The respondent opposed, arguing the applicant failed to establish grounds to set aside the order.

The court dismissed the motion, finding no evidence of fraud by counsel and that the applicant did not meet the preconditions under Family Law Rules 25(19) or the residual power test from Mountain View Farms.

The court emphasized the importance of finality in consent orders and the integrity of the administration of justice.

The plaintiff commenced an action with a Statement of Claim making various outlandish allegations of criminal conduct against a police officer and police services.

The defendants, Waterloo Regional Police Service and David Clark, requested an order dismissing the action under Rule 2.1.01(6) of the Rules of Civil Procedure, arguing it was frivolous, vexatious, or an abuse of process.

The court found the pleadings unintelligible, implausible, and a continuation of harassment, dismissing the action as clearly abusive and vexatious.

Kin Canada and The Kinsmen Club of Oshawa (Applicants) brought an application seeking a declaration that their insurers, Ecclesiastical Insurance Office Public Company Limited and Certain Non-Marine Underwriters o/a Lloyd’s Of London and Lloyd’s Canada (Respondents), had a duty to defend them in an underlying lawsuit.

The underlying claim involved damages related to the discovery of underground oil storage tanks (USTs) on a property sold by The Kinsmen Club of Oshawa in 2005, with allegations of negligent misrepresentation and mismanagement, and vicarious liability against Kin Canada.

The court found that the pollution exclusion clauses in both insurance policies applied, as the true nature of the underlying claim was environmental pollution arising from leaking USTs and the failure to comply with regulatory requirements for their removal.

Consequently, the court dismissed the application, ruling that the duty to defend did not arise for either insurer.

The appellant husband appealed an order granting the respondent wife's motion for partition and sale of their jointly owned matrimonial home and dismissing his motion for summary judgment.

The husband argued the parties had reached a binding agreement for him to buy out the wife's interest.

The Divisional Court upheld the motion judge's finding that there was no meeting of the minds, as the husband's acceptance did not include the wife's requirement for a spousal support release.

The Court also found no error in the order for partition and sale under the Partition Act, noting no malicious or oppressive conduct by the wife.

The appeal was dismissed.

The applicant wife brought a motion for the partition and sale of the matrimonial home and for temporary exclusive possession pending the sale.

The respondent husband brought a cross-motion for partial summary judgment to enforce an alleged pre-litigation settlement agreement for him to buy out the wife's interest.

The court found that the correspondence between counsel did not constitute a binding agreement, as essential terms regarding spousal support and equalization were not settled.

The court granted the wife's motion for partition and sale, finding no prejudice to the husband, but dismissed her request for temporary exclusive possession due to insufficient evidence.

The applicant brought a motion to re-open a family law trial to admit an appraisal report regarding the matrimonial home, which was omitted from the joint document brief due to counsel's inadvertence.

The trial decision had already been released, though judgment was not yet entered.

The court dismissed the motion, finding no mutual mistake between counsel regarding the document's inclusion.

Applying the test to re-open a trial, the court held that the evidence was available before trial and could have been adduced with reasonable diligence, and that the principle of finality weighed against re-opening the matter.

Following the dismissal of the plaintiff's action for delay, the defendants sought partial indemnity costs.

The self-represented plaintiff argued he was not liable for costs because he had accepted the defendants' offer to settle, which proposed a dismissal without costs.

The court found that the plaintiff attempted to accept the offer only after his request for an adjournment was denied at the motion hearing.

Applying Rule 49, the court held that the hearing had already commenced when the defendants' counsel first addressed the court, rendering the plaintiff's acceptance untimely.

The court awarded the defendants their requested costs of $15,881.04.

The defendant lawyer brought a motion to dismiss the plaintiff's professional negligence action for delay under Rule 24.01.

The action was commenced in 2012 and had previously been administratively dismissed and reinstated with a strict timetable.

The self-represented plaintiff failed to comply with the timetable, failed to file responding materials, and repeatedly sought adjournments without adequate medical evidence.

The court found the plaintiff's delay to be intentional, contumelious, and inexcusable, causing significant prejudice to the defendants.

The motion was granted and the action was dismissed for delay and as an abuse of process.

The applicant father brought an urgent 14B motion to stay the enforcement of a 2013 child support order by the Family Responsibility Office (FRO).

The children had been living primarily with the father since 2014, yet the mother continued to collect ongoing support and arrears, including emergency pandemic relief benefits garnished by FRO.

The court found the issue urgent and ordered a temporary stay of the support order pending a scheduled Motion to Change, noting the mother should not receive ongoing support for children not in her care.

The applicant sought an order extending the limitation period for her equalization claim under s. 2(8) of the Family Law Act.

The court found that the applicant had prima facie grounds for relief, that her delay was incurred in good faith due to honest confusion about the limitation date and modest means, and that the respondent would not suffer substantial prejudice.

The motion was granted, extending the limitation period to February 12, 2020, the date the application was issued.

Each party was ordered to bear their own costs of the motion.

The appellants, current and former uniform members of the Waterloo Regional Police Service, appealed from a motion judge's order dismissing their proposed class action for want of jurisdiction and denying certification.

The appellants alleged systemic gender-based workplace discrimination and harassment, including breach of Charter rights and breach of the duty of fair representation.

The Court of Appeal upheld the dismissal, finding that the Superior Court lacked jurisdiction because the appellants' claims fell within the exclusive jurisdiction of labour arbitrators under the Police Services Act and the Human Rights Tribunal of Ontario.

The court noted that the collective agreement permits group grievances and arbitrators possess broad remedial powers.

The appellant, a commercial property owner, appealed the dismissal of its action under Rule 21 of the Rules of Civil Procedure.

The appellant sought declaratory relief that the respondents were "persons having control of a pollutant" under section 99 of the Environmental Protection Act and were liable for contribution or indemnity regarding lead contamination on the property.

The motion judge dismissed the action on the grounds that it disclosed no reasonable cause of action and was frivolous and vexatious.

The Court of Appeal upheld the dismissal, finding that the statement of claim contained a "radical defect" by failing to allege facts necessary to support the claim, specifically failing to plead when the first discharge of lead occurred or that the respondents had control of the pollutant immediately before such discharge.

The plaintiffs, current and former female police officers, sought to certify a class action against the Waterloo Regional Police Services Board and Association for systemic gender-based discrimination and sexual harassment.

The defendants challenged the court's jurisdiction, arguing that labour arbitrators and the Human Rights Tribunal of Ontario had exclusive jurisdiction.

The court found it lacked jurisdiction, as the claims arose from the employment relationship governed by a collective agreement and the Police Services Act, which provide a comprehensive dispute resolution scheme.

Furthermore, the court determined that even if it had jurisdiction, the claims did not disclose a viable cause of action under common law, as human rights legislation precludes independent civil actions for discrimination and sexual harassment.

In a proposed class action alleging systemic gender-based discrimination and sexual harassment within the Waterloo Regional Police Service, the parties brought several pre-certification motions.

The plaintiffs' motions to compel answers to questions refused on cross-examination by the Chief of Police and the Association President were dismissed.

The defendants' motions to strike the plaintiffs' expert evidence and portions of the plaintiffs' affidavits were deemed premature and deferred to the certification motion, though the expert opinion portion of the report was excluded.

Appeal of a trial judgment in a property dispute between cottage owners.

The trial court found that the appellants had trespassed on the respondent's water lot and issued a permanent injunction restraining them from entering the dry land portion.

The appellants' counterclaim for an easement was dismissed.

On appeal, the appellants raised new arguments regarding riparian rights, accretion, and the high water mark, which had not been argued at trial.

The appellants also challenged the sufficiency of the trial judge's reasons and sought to adduce fresh evidence.

The Court of Appeal dismissed all grounds of appeal, finding that the appellants were attempting to fundamentally alter their case post-trial and that the trial judge's reasons were sufficient.

On appeal from a trial judgment, the appellant House challenged the trial judge's findings regarding municipal liability for winter road maintenance, apportionment of fault, and the discount rate applied to damages.

The trial judge found that the Township of Wilmot was not liable for the accident despite unanticipated ice formation on Huron Road, as the municipality met its statutory defences under the Municipal Act.

The trial judge apportioned fault equally (50/50) between House as driver and Baird as vehicle owner, whose defective tires contributed to the loss of control.

The Court of Appeal dismissed House's appeal on all three issues and also dismissed Baird's cross-appeal regarding costs.

Following a motion regarding the appointment of an estate trustee during litigation and the production of records, the court issued a costs endorsement.

The court noted that both parties took inflexible positions and failed to make offers to settle.

Because success on the motion was divided, the court declined to order costs to either party and encouraged future negotiation and mediation.