James H. Bennett

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 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.

The plaintiff, Pixiu Solutions Inc., discontinued its action against the three defendants: Canadian General-Tower Limited, CGT Shanghai Trading Co. Ltd., and CGT Changshu Co. Ltd. The defendants subsequently brought a motion to fix their costs of the action on a partial indemnity basis.

The plaintiff argued for a total costs award that would result in a "wash" against a prior costs order in its favour.

The court considered the factors under the Courts of Justice Act and Rule 57.01, including the reasonable expectations of the unsuccessful party and the necessity of separate counsel for distinct legal entities.

The court reduced the claimed costs for Changshu and Canadian General-Tower Limited due to disproportionality and time spent on issues not involving them, but allowed Shanghai's claim in full.

The aggregate costs awarded to the defendants were found to be proportionate and within the plaintiff's reasonable expectations.

This ruling addresses costs following the dismissal of an action on a motion for summary judgment.

The plaintiff, despite losing, sought costs in his favour, which was denied.

The defendants sought substantial indemnity costs, relying on an offer to consent to dismissal without costs and alleging the plaintiff's claims impugned their integrity.

The court rejected the defendants' claim for substantial indemnity, finding that an offer to dismiss without costs does not warrant elevated costs and that the plaintiff's conduct did not merit sanction.

The defendants were awarded partial indemnity costs, fixed at $14,331.06.

This costs endorsement addresses the issue of costs following a motion for directions.

The plaintiff, Pixiu Solutions Inc., was deemed the successful party on the motion.

The defendants' offer to settle did not qualify under Rule 49.10 of the Rules of Civil Procedure because it included a proviso regarding the mode of examination of a witness, making it not capable of acceptance without further agreement.

Consequently, Pixiu Solutions Inc. was awarded partial indemnity costs.

The plaintiff brought an action against the defendant and its foreign subsidiaries for breach of a supply agreement.

The foreign subsidiaries brought motions to dismiss or stay the action for lack of jurisdiction.

The plaintiff brought a motion for directions to examine witnesses pursuant to Rule 39.03 prior to the hearing of the jurisdiction motions.

The court allowed the plaintiff to cross-examine one witness and examine another, finding that the proposed evidence was possibly relevant to the issue of whether a contract connected with the dispute was made in Ontario, a presumptive connecting factor for jurisdiction.

Two cross-applications were brought regarding the property of an incapable person.

The attorneys for property sought the court's direction on whether to honour requests for money from the incapable person's son.

The son and his wife sought to remove the attorneys and force a passing of accounts.

The court dismissed the attorneys' application, holding that the court cannot give directions on how attorneys should exercise their discretion.

The court also dismissed the son's application, finding no strong and compelling evidence of misconduct or neglect to justify removing the attorneys, and noting the failure to obtain leave for a passing of accounts.

Two cross-applications were brought regarding the property of an incapable person.

The attorneys for property sought the court's direction on whether to honour requests for money from the incapable person's son.

The son and his wife sought to remove the attorneys and force a passing of accounts.

The court dismissed the attorneys' application, holding that the court cannot give directions on how attorneys should exercise their discretion.

The court also dismissed the son's application, finding no strong and compelling evidence of misconduct or neglect to justify removing the attorneys, and noting the failure to obtain leave for a passing of accounts.

The applicant sought relief from forfeiture of elected municipal office after failing to file an audited campaign financial statement as required by the Municipal Elections Act, 1996.

The failure arose from an accounting error that caused the applicant to mistakenly believe an audit was not required.

The court considered its equitable jurisdiction under s. 98 of the Courts of Justice Act and applied the relief-from-forfeiture test focusing on the applicant’s conduct, the gravity of the breach, and the proportionality between the breach and the forfeiture.

The court found the breach technical and inadvertent, that the applicant acted in good faith, and that no prejudice resulted.

Relief from forfeiture was granted, allowing the applicant to retain the elected office.