J. Douglas Cunningham

The appellant surveyors prepared a reference plan that incorrectly portrayed a right of way as a straight line, failing to show a curve that circumvented a rock outcrop.

The reference plan was deposited on title.

A dispute arose between the neighbouring property owners over the use of the road.

The surveyors brought a motion to rectify the reference plan under section 160 of the Land Titles Act.

The motion judge dismissed the motion, holding that the registered title was indefeasible.

The Court of Appeal allowed the appeal, finding that a reference plan does not independently create an interest in land and that the court has jurisdiction to rectify the boundaries of the right of way.

The appellant appealed an order dismissing his motion for partial summary judgment, which he had brought on the basis of issue estoppel relying on findings from a Federal Court security certificate proceeding.

During oral argument, the appellant conceded he was no longer appealing the correctness of the order dismissing the motion, but only sought to appeal the motion judge's conclusion that issue estoppel did not apply.

The Court of Appeal quashed the appeal for want of jurisdiction, holding that an appeal lies from an order and not from the reasons of the court below.

The appellant tenant appealed a Landlord and Tenant Board decision terminating his tenancy on the basis that the landlord required the unit in good faith for her own use.

The Divisional Court dismissed the tenant's motion to admit fresh evidence and rejected arguments that the Board failed to consider s. 72(2) of the Residential Tenancies Act or erred in its good faith analysis.

The appeal was dismissed, as the tenant failed to identify any error of law.

The applicants sought judicial review of a Small Claims Court decision that stayed their action for unpaid health and welfare benefits to allow the Ontario Labour Relations Board (OLRB) to determine if it had jurisdiction.

The dispute arose following a union raid.

The Divisional Court confirmed it had jurisdiction to review interlocutory orders of the Small Claims Court but dismissed the application, agreeing that the OLRB, which has exclusive jurisdiction over labour relations issues, should first determine its jurisdiction over the matter.

The court-appointed Receiver brought a motion for directions on whether the Auctioneer was entitled to a Buyer's Premium on a private sale of the debtor's assets.

The motion judge denied the premium because the Offer to Purchase contained an entire agreement clause and did not mention the premium.

On appeal, the Court of Appeal reversed the decision, finding that the Auction Service Agreement between the Receiver and the Auctioneer mandated the premium, and denying it would result in commercial absurdity and a windfall to the Receiver.

The appellant appealed a trial judgment following a jury verdict in a motor vehicle accident case.

The appellant argued the trial judge erred by suggesting a Town official's expected evidence regarding traffic light timing was expert opinion, and by recalling and recharging the jury after their initial verdict stated the respondent 'may have had an opportunity to avoid colliding'.

The Court of Appeal dismissed the appeal, finding the trial judge had not ruled on the admissibility of the uncalled witness's evidence, and properly recharged the jury because the initial verdict did not meet the legal definition of negligence.

The appellant appealed the dismissal of his action against his former employer for wrongful dismissal and intentional exposure to diseases.

The Court of Appeal dismissed the appeal, finding it entirely without merit as the appellant raised no credible evidence to support his allegations.

The court upheld the trial judge's findings that the employer abided by its contractual and statutory obligations and that there was no evidence of malicious intent or provable illness attributable to the employer.

The appellant appealed a summary judgment dismissing his claims against the respondents arising from a customer service dispute.

The motion judge found that even if the facts were as the appellant alleged, the claims lacked merit because the respondents did not cause his detention, did not threaten or touch him, and had backed away from the confrontation.

The Court of Appeal upheld the motion judge's findings, rejected a new claim under the Occupiers' Liability Act, and confirmed that the motion judge correctly applied the summary judgment test.

The appeal was dismissed with costs.

The applicant sought judicial review of a decision of the Social Benefits Tribunal.

The Divisional Court dismissed the application, finding that the applicant had failed to exercise his statutory right to appeal under s. 31(1) of the ODSPA, which constituted an adequate alternative remedy.

The applicant failed to identify any exceptional circumstances that would justify bypassing the statutory appeal process to pursue judicial review.

The appellant appealed a summary judgment decision in favour of the respondent bank regarding a loan default.

The appellant sought to introduce fresh evidence, including an affidavit from a signing officer, to argue the loan was intended for a company rather than him personally.

The Court of Appeal dismissed the appeal, finding the fresh evidence was available prior to the summary judgment hearing and lacked sufficient detail to be meaningful.

The court held the appellant failed to put his best foot forward, and the motion judge made no errors in granting summary judgment.

The appellant appealed a decision interpreting a settlement agreement between two internet-based boater accreditation businesses.

The Court of Appeal dismissed the appeal, finding that the application judge correctly interpreted the unambiguous wording of the agreement in accordance with sound commercial principles, particularly regarding the use of phrases to drive internet traffic.

The appellant sought to certify a class proceeding on behalf of York University students whose classes were disrupted by a 2008 strike, alleging breach of contract, breach of the Consumer Protection Act, and unjust enrichment.

The motions judge dismissed the certification motion, finding the pleadings failed to disclose a reasonable cause of action because the claims improperly interfered with the university's academic discretion.

The Divisional Court dismissed the appeal, upholding the motions judge's conclusion that the claims were barred by academic discretion and that the pleadings were insufficient to establish a contractual or statutory cause of action.

The appellants appealed the property assessments of four car dealerships in Toronto.

The Assessment Review Board had ruled that for the purposes of equitable assessment under s. 44(3)(b) of the Assessment Act, similar lands in the 'vicinity' could not exceed the boundaries of the municipality.

The Divisional Court allowed the appeal, holding that the legislature did not intend to limit 'vicinity' to municipal boundaries in the Assessment Act, as evidenced by explicit municipal boundary limitations placed on the term in other statutes like the Municipal Act, 2001 and the City of Toronto Act, 2006.

The matter was remitted to the Board for redetermination.

The appellant appealed a motion judge's order dismissing a motion to transfer an application to the Divisional Court.

The underlying application sought a declaration that the Minimum Maintenance Standards regulation was ultra vires and invalid, arising from a motor vehicle accident tort action against a municipality.

The Divisional Court dismissed the appeal, finding that under section 8 of the Judicial Review Procedure Act, the motion judge had the discretion to retain jurisdiction over the application rather than transferring it, and that this discretion was exercised reasonably to facilitate judicial economy.

The appellants appealed a trial judgment finding them liable for over $20 million in damages for improperly placing a paving company, Osler, into bankruptcy as part of a fraudulent scheme to deprive the respondents (the Alfano family trusts) of their 87 percent equity interest.

The Court of Appeal upheld the finding of liability against Mr. Piersanti, agreeing that he orchestrated a fraudulent scheme, including concocting a fake shareholders' agreement and assigning the company into bankruptcy.

The Court also upheld the trial judge's decision to exclude the appellants' expert witness for lacking independence and acting as an advocate.

However, the Court allowed the appeal in part by setting aside the liability finding against Ms. Piersanti, reducing the compensatory damages to $14,391,807 based on adjustments conceded by the respondents' expert at trial, and setting aside orders requiring a related company to pay $2.5 million into court and declaring an interest in certain properties.

Skyservice Airlines Inc. went into receivership leaving unpaid airport and air navigation charges.

The airport authorities and NAV Canada obtained orders to seize and detain aircraft leased by Skyservice to recover the amounts owed.

The aircraft lessors appealed, arguing that Skyservice no longer 'owned or operated' the aircraft at the time of the applications due to the receivership, suspension of its air operator certificate, and the lessors' attempts to terminate the leases.

The Court of Appeal dismissed the appeal, applying the Supreme Court of Canada's decision in Canada 3000, holding that Skyservice remained the registered owner and operator in possession of the aircraft at the relevant time, and the statutory detention remedy takes priority over the lessors' property interests.

The applicant sought judicial review of the Director of the Ministry of the Environment's decision to issue a Renewable Energy Approval for a wind facility.

The applicant argued the Director failed to comply with regulatory requirements and denied procedural fairness.

The Divisional Court dismissed the application, finding that the applicant lacked both personal and public interest standing.

In the alternative, the court held that the Director's decision to dispense with strict compliance with notice requirements was reasonable, and the consultation process met the common law requirements of procedural fairness.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy after they were found ineligible for geared-to-income rent due to alleged misrepresentation of assets.

At the Board hearing, the tenants attempted to raise the issue of harassment by the landlord's property manager, but the Board refused to consider it because it was not raised two weeks prior to the hearing.

The Divisional Court allowed the appeal, finding that the Board erred in law because section 82 of the Residential Tenancies Act requires the Board to permit a tenant to raise any issue that could be the subject of a tenant application.

The Board's order was set aside.

The parties separated after a 25-year marriage and equalized their assets, including the appellant's pension.

The appellant later retired and brought a motion to reduce his spousal support obligations.

The motions judge reduced the support but included the appellant's full pension income in the calculation.

On appeal, the Divisional Court found the motions judge committed a palpable and overriding error by failing to exclude the previously equalized portion of the pension, resulting in inequitable double recovery.

The appeal was allowed and spousal support was reduced based only on the unequalized portion of the pension.

The appellants, former agents of the respondent insurance company, appealed the dismissal of their motion for certification as a class action.

They claimed termination and severance pay under the Employment Standards Act, 2000, alleging constructive dismissal due to the employer's change in its business model.

The Divisional Court upheld the motion judge's decision, finding that the claims required highly individualized inquiries regarding the impact of the changes, reasonable notice, and mitigation, and therefore lacked commonality.

The appeal was dismissed.