J. Douglas Cunningham

The appellants appealed a trial decision in a construction lien action, arguing the trial judge misapprehended evidence, failed to find a verbal contract altering payment terms, and was biased.

The Divisional Court dismissed the appeal, finding the trial judge's conclusions were supported by the evidence and the unambiguous written agreement.

The court also rejected the bias allegation, noting it was not raised at trial and had no basis.

Costs of $25,000 were awarded to the respondents.

The appellant lawyer appealed a decision of the Law Society's Appeal Panel upholding the revocation of his license to practice law following criminal convictions for sexual exploitation of two minors.

The appellant argued the penalty was too harsh given his prior good character and cooperation, and that the panels erred in assessing remorse and character evidence.

The Divisional Court dismissed the appeal, finding the panels' decisions reasonable and that revocation was an appropriate penalty for sexual misconduct involving a breach of trust with young persons.

The appellant appealed a decision of the Social Benefits Tribunal finding that she was not a person with a disability under the Ontario Disability Support Program Act, 1997.

The Divisional Court held that the Tribunal's conclusion was supported by an evidentiary basis, making the issue at highest a question of mixed fact and law.

As appeals to the Divisional Court under the Act are restricted to questions of law, the court lacked jurisdiction and dismissed the appeal.

The appellant landlord appealed a decision of the Landlord and Tenant Board ordering a 10% rent abatement for 53 tenants due to alleged failure to maintain the building and interference with reasonable enjoyment.

The Divisional Court allowed the appeal, finding that the Board member's reasons were conclusory, lacked transparency, and failed to analyze the statutory requirements under the Residential Tenancies Act.

The matter was remitted to a differently constituted panel for a re-hearing solely on the issue of the landlord's obligation to repair.

The appellant, an inmate, appealed the dismissal of his action for malicious prosecution and Charter damages against a police officer and the Crown.

The appellant had been charged with assault causing bodily harm following a prison fight, but the charge was later withdrawn.

The Divisional Court upheld the trial judge's findings that the investigating officer had reasonable and probable grounds to lay the charge and did not act with malice.

The court also confirmed that mala fides is required to establish a breach of section 7 of the Charter in this context, and that the appellant sued the wrong level of government for his transfer to a maximum-security facility.

The appeal was dismissed.

The appellant discovered that the respondent, a fellow bank employee who was in a relationship with the appellant's former husband, had repeatedly accessed her private banking records without authorization.

The motion judge dismissed the appellant's claim, finding that Ontario law did not recognize a tort of invasion of privacy.

The Court of Appeal allowed the appeal, formally recognizing the tort of intrusion upon seclusion in Ontario.

The court awarded the appellant $10,000 in damages, finding the respondent's deliberate and repeated actions were highly offensive and caused distress.

The applicant, a pediatric anesthesiologist, sought judicial review of a university committee's decision denying his promotion to Associate Professor.

The denial was based on a prior finding of sexual harassment, which had resulted in probation rather than the dismissal recommended by the Dean.

Because the promotion was denied, the applicant lost his academic medical license.

The Divisional Court quashed the committee's decision, finding a breach of procedural fairness.

The court held that the Dean's active participation at every level of the promotion process, after having previously investigated the harassment complaint and recommended the applicant's dismissal, raised a reasonable apprehension of bias.

The Attorney General of Canada appealed a motion judge's decision to conditionally certify a class action on behalf of aboriginal people placed in non-aboriginal foster or adoptive homes.

The motion judge had found that the statement of claim did not disclose a cause of action but conditionally certified claims in negligence and breach of fiduciary duty, effectively pre-approving an amended pleading.

The Divisional Court allowed the appeal, holding that the motion judge erred by predetermining the viability of the cause of action without conducting a full analysis and denying the defendant the opportunity to argue the certification criteria.

The statement of claim was struck with leave to amend, and the certification motion was ordered to be heard by a different judge.

The respondent was seriously injured in a motor vehicle accident after losing control of her vehicle on a snow and ice-covered municipal road.

The trial judge found the appellant municipalities liable for failing to maintain the road, apportioned liability 50/50 due to the respondent's contributory negligence, and rejected the municipalities' defence under the Minimum Maintenance Standards (MMS).

On appeal, the municipalities argued the MMS provided a complete defence.

The Court of Appeal dismissed the appeal, holding that the specific MMS provisions for snow accumulation and icy roadways did not apply to the municipalities' failure to monitor weather and deploy resources before the road became icy.

The respondent's cross-appeal on the 50/50 apportionment of liability was also dismissed.

The appellant municipality appealed a decision of the Ontario Municipal Board that granted nine minor variances for a mixed-use development.

The appellant argued the Board failed to conduct an independent analysis of the four-part test under s. 45(1) of the Planning Act, relied on irrelevant factors, and reversed the onus of proof.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable, transparent, and did not reverse the legal onus or rely on irrelevant factors.

The City of Vaughan sought judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of an employee's entry and exit points on the 407 ETR highway.

The City had reimbursed the employee for the toll charges but redacted the location and timing data from the disclosed invoices, arguing it was personal information.

The Commissioner found that while it was personal information, it fell under the exception for information disclosing an employee 'benefit' under s. 14(4)(a) of the Municipal Freedom of Information and Protection of Privacy Act.

The Divisional Court applied a reasonableness standard of review and upheld the Commissioner's decision, finding that the entry and exit points defined the quantum of the benefit and were subject to disclosure to ensure government accountability.

The appellant farmer sued the respondent, claiming it supplied animal feed that caused death and illness to his livestock.

The motion judge granted summary judgment dismissing the action, noting the appellant failed to present expert evidence or cross-examine the respondent's affiant.

The Court of Appeal dismissed the appeal, finding the motion judge correctly concluded the appellant failed to put his best foot forward and meet his evidentiary burden.

The appellant appealed a costs judgment awarding the respondent $298,681.16 in partial indemnity costs following a 16-day trial where the respondent was awarded $218,331.15 in damages.

The appellant argued the trial judge erred by awarding an amount virtually the same as substantial indemnity costs and failing to consider proportionality.

The Court of Appeal dismissed the appeal, finding the trial judge carefully explained his reasons, considered the complexities of the case, and had the proportionality principle in mind, demonstrating no error in principle.

The appellants appealed a jury verdict dismissing their action against the respondent.

They argued the trial judge erred in the jury charge regarding the Occupiers' Liability Act, improperly excluded them from the courtroom, and that the respondent's jury address was inflammatory.

The Court of Appeal dismissed the appeal, finding no errors in the jury charge, noting the exclusion was on agreement of counsel, and holding that the jury address was not inappropriate.

Following the dismissal of a class proceeding, the Attorney General for Canada sought costs against the plaintiffs' solicitors, arguing the plaintiffs had not given informed consent regarding costs exposure.

The motions judge ordered the solicitors to personally indemnify the defendants for costs, finding that uninformed consent equated to a lack of authority to commence the action.

The Court of Appeal allowed the solicitors' appeal, holding that a failure to advise on costs does not invalidate the authority conferred by a client to commence proceedings, and that breach of warranty of authority could not put the defendants in a better position than if the impecunious plaintiffs had provided informed consent.

The appellant appealed the dismissal of his libel action against the CBC and Warren Kinsella.

The trial judge had dismissed the action as statute-barred because the appellant failed to provide notice within six weeks after the alleged libel came to his attention, as required by s. 5(1) of the Libel and Slander Act.

The Court of Appeal upheld the trial judge's finding that the appellant could reasonably have known of the libel earlier and failed to act diligently to ascertain the facts after learning the gist of the broadcast.

The appeal was dismissed with costs of $25,000.

The appellant appealed an order striking his pleadings and dismissing his motion to change a final spousal support order, as well as an enforcement order for support arrears.

The Court of Appeal dismissed the appeals, finding that the appellant's pleadings were properly struck due to his wanton noncompliance with court orders and failure to pay costs.

The court also found no error in the enforcement order or any evidence of judicial bias, noting the appellant failed to avail himself of procedural rights to demonstrate an inability to pay.

The appellant appealed a decision of the Criminal Injuries Compensation Board that reduced and ultimately terminated his periodic monthly payments.

The appellant had been receiving compensation for injuries sustained when he intervened in a motor vehicle accident involving an intoxicated driver.

The Board terminated the payments after 14 years, noting the appellant's receipt of other income replacement benefits, lack of retraining efforts, and the impact of a pre-existing injury.

The Divisional Court dismissed the appeal, finding no error of law in the Board's exercise of its discretion to vary the compensation order under section 25 of the Compensation for Victims of Crime Act.

The appellants appealed a trial judgment holding them liable in negligence and nuisance for water damage to the respondent's basement.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge made three fatal legal errors: improperly shifting the burden of proof by finding a 'presumption of negligence', imposing a non-existent duty on the appellants to assert a claim against the city on behalf of the respondent, and applying a material contribution test for causation instead of the standard 'but for' test.

The Director of the Ontario Disability Support Program appealed a decision of the Social Benefits Tribunal finding the respondent to be a person with a disability.

The Divisional Court allowed the appeal, finding the Tribunal committed a reversible error by relying on social and external factors—such as the respondent's lack of education, her husband's unemployment, and her childcare responsibilities—rather than her medical impairments to conclude she was substantially restricted in her ability to function in a workplace.

The Court also found the Tribunal's reasons to be inadequate.

The matter was remitted to a differently constituted panel for a new hearing.