James H. Cooke

The moving party brought a motion for directions concerning a February 21, 2025 order of Justice Rady, seeking clarification on whether the order was final or interlocutory and the proper route of appeal.

The moving party contended the order was final and that jurisdiction lay with the Court of Appeal for Ontario.

The responding parties agreed with this position.

The Court dismissed the motion, holding that parties cannot confer jurisdiction by agreement, but that where jurisdiction is not contested, the appeal should proceed in the normal course without requiring an advance motion for a positive finding on jurisdiction.

The Court noted that jurisdiction is ultimately a matter for the panel hearing the appeal.

The appellants appealed a condition imposed by the Town of Leamington on a consent to sever application, which required the closure of access to a county road.

At the first Case Management Conference, the Ontario Land Tribunal scheduled a two-day video hearing and set deadlines for the submission of additional traffic study evidence.

The parties also indicated an intention to seek Tribunal-led mediation once the evidence is submitted.

The appellant appealed the Committee of Adjustment's refusal of a minor variance to reduce the interior lot line setback for a new warehouse on an agricultural property used for a greenhouse operation.

The municipality did not oppose the appeal and did not attend the hearing.

The Tribunal accepted the uncontested expert planning evidence that the variance met the four tests under the Planning Act.

The variance was deemed minor and desirable as the interior lot lines would eventually be eliminated once a planned waste treatment facility was installed and the properties consolidated.

The appeal was allowed and the minor variance was granted.

The applicant appealed the Town of Amherstburg Committee of Adjustment's refusal of a consent to sever and a minor variance for a property on North Street.

The applications sought to create a new lot for a semi-detached dwelling and requested relief for driveway width.

At the first Case Management Conference, the parties indicated ongoing discussions to resolve the issues.

The Tribunal scheduled a one-day video hearing and directed the parties to submit a draft Procedural Order and Issues List.

The Tribunal held a status hearing regarding a land compensation claim for an expropriation in the Town of Tecumseh.

The Ministry of Transportation indicated that a settlement with the claimant was imminent.

The Tribunal scheduled a further status hearing for September 2022, directing the parties to either convert it to a settlement hearing or be prepared to set hearing dates and file a draft Procedural Order and Issues List if no settlement is reached.

The moving party defendants sought leave to appeal an order dismissing their motion for summary judgment based on a limitation period defence.

The Divisional Court noted that although the motion judge made findings about the limitation period defence, there was no order in that regard, making the order interlocutory.

The motion for leave to appeal was dismissed with costs awarded to the respondents.

The Normal Farm Practices Protection Board issued a procedural order setting out the rules and requirements for an upcoming video conference hearing via Zoom.

The order details the obligations of the parties regarding witness participation, document disclosure, and technical requirements for the electronic hearing.

The Board issued a procedural order adding the Ontario Greenhouse Vegetable Growers as a Third Party to the application.

Pursuant to subsection 9.1(1)(b) of the Statutory Powers Procedure Act, the Board also ordered that the application be heard at the same time as nine other related applications brought by various greenhouse farms against the Municipality of Leamington.

The Normal Farm Practices Protection Board issued a procedural order on consent adding the Ontario Greenhouse Vegetable Growers as a Third Party.

The Board also ordered that the applicant's case be heard at the same time as eight other related applications against the Municipality of Leamington, and set out a schedule for the hearing, disclosure, and procedural planning.

A pre-hearing conference was held regarding an application challenging a municipal by-law restricting normal farm practices.

On consent, the Board ordered that the Ontario Greenhouse Vegetable Growers be added as a third party and that the application be heard at the same time as six other related applications challenging the same by-law.

Procedural directions were given for disclosure and the conduct of the joint hearing.

The plaintiffs brought an action for damages arising from the flooding of their greenhouse, alleging the defendants negligently altered their adjacent property and caused the flood.

The parties had previously entered into Minutes of Settlement regarding the dispute, which the defendants subsequently breached by failing to construct a berm.

The court held that the plaintiffs could not rescind the settlement to resurrect their tort claim, as they had contracted it away.

Furthermore, the court found the plaintiffs failed to prove on a balance of probabilities that the defendants caused the flooding.

However, the court granted a declaration that the defendants breached the Minutes of Settlement, entitling the plaintiffs to damages for that breach.

The parties engaged in an international commercial arbitration regarding a contract for the sale of tomatoes.

The arbitrator awarded the respondent $45,516.95 USD.

The applicant sought to set aside the award, initially under the Arbitration Act, and later attempted to rely on a basket clause to seek relief under the International Commercial Arbitration Act (ICAA) after the three-month limitation period expired.

The court held that the applicant could not use a basket clause to assert a new cause of action out of time.

Furthermore, the court found that even if the ICAA applied, the arbitrator's alleged errors in interpreting trade terms did not conflict with the public policy of Ontario.

The application to set aside the award was dismissed, and the cross-application to recognize and enforce the award was granted.

The applicant sought to set aside an arbitration award regarding a real estate commission dispute on the basis that the arbitration committee provided no reasons for its decision.

The court found that the total absence of reasons violated section 38 of the Arbitration Act and common law requirements.

Because there was no record of the arbitration proceedings and no assurance the committee members could recall their reasoning, the court declined to remit the matter back to the committee and instead set aside the award.

The appellant commenced construction lien and breach of trust actions that were dismissed for delay at a status hearing after more than 13 years.

The appellant moved to set aside the dismissal, arguing its former counsel had misled it about the progress of the actions.

The motion judge dismissed the motion, finding the appellant failed to provide an acceptable explanation for the delay.

The Court of Appeal upheld the decision, confirming that a commercial plaintiff has an obligation to supervise its counsel and move its actions forward expeditiously.

The plaintiff brought a motion to set aside orders dismissing several construction lien and related breach of trust actions for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the Reid factors governing relief from dismissal orders under Rule 37.14 and considered whether the delay was adequately explained, whether the missed deadlines were inadvertent, whether the motion was brought promptly, and whether reinstatement would prejudice the defendants.

The court found the litigation delay was extreme and largely attributable to repeated failures by the plaintiff’s former counsel to comply with court‑ordered timelines, coupled with insufficient oversight by the plaintiff.

Although the motion to set aside was brought promptly once the dismissal became known, the delay was not inadvertent and reinstatement would cause real prejudice given the nature of lien and trust claims.

Applying a contextual approach, the court concluded the balance favoured finality and refused to set aside the dismissal orders.

The licensee, a standardbred racehorse trainer, appealed a Proposed Order by the Director of the Ontario Racing Commission alleging he participated in racing while his licence was suspended.

The Commission found that despite transferring his horses to another trainer, the licensee maintained significant involvement in their care, banking, and sale, and had extensive contact with the new stable staff.

The Commission concluded the licensee participated directly or indirectly in racing while suspended, violating Rule 6.10.01.

The Director's application was granted, and the licensee was suspended for over nine months and fined $5,000.

The appellant, a court-appointed receiver, appealed a motion judge's decision refusing to approve the full amount of legal fees requested on behalf of its counsel.

The motion judge had reduced the fees, finding them disproportionate to the size and complexity of the receivership.

The Court of Appeal dismissed the appeal, holding that the court must ensure compensation is fair and reasonable, focusing on the value provided rather than just the mathematical calculation of hours multiplied by hourly rates.

The motion judge's assessment of the fees as excessive was upheld.

The Director of the Ontario Racing Commission applied for a declaration that the licensee participated in racing while his licence was under suspension.

The panel granted the application, finding a violation of Rule 6.10.01 of the Rules of Standardbred Racing.

The licensee was suspended for nine months and five days and fined $5,000.

The appellant, a standardbred licensee, sought a stay of an Order of Immediate Suspension pending the disposition of his appeal.

The Ontario Racing Commission denied the request for a stay, finding that the appellant failed to demonstrate extraordinary or mitigating circumstances through clear, cogent, and compelling evidence to overcome the Commission's no-stay policy.

The appeal was ordered to be heard expeditiously.

The applicant filed a human rights application alleging discrimination on the basis of disability and reprisal in the area of housing.

The applicant alleged that the respondent tenants association moved his bicycle without permission, which exacerbated his disability, and that this action was a reprisal for his advocacy work educating tenants on their rights.

The respondent requested a summary hearing to dismiss the application.

The Tribunal found that the applicant failed to communicate any disability-related needs to the respondent and could not establish how moving the bicycle resulted in a disadvantage based on disability.

The Tribunal also found the reprisal allegations to be highly speculative and insufficient to establish that moving the bicycle was intended retaliation for asserting human rights.

The application was dismissed as having no reasonable prospect of success.