J. Douglas Cunningham

The appellant appealed the dismissal of his application seeking a declaration that certain lands in Ontario are not public lands available for disposition or regulation by the Crown.

The motion judge struck the application on the basis that the courts lack authority to adjudicate challenges to Canada's sovereignty.

The Court of Appeal agreed, finding that the appellant's claim amounted to a challenge to sovereign jurisdiction, and dismissed the appeal.

The appellants appealed a trial judgment, arguing the trial judge reversed the onus of proof and misapprehended evidence regarding a contract dispute.

The Court of Appeal dismissed the appeal, finding that because time was not of the essence, the appellants bore the onus to prove the respondent caused the delay and resulting damages.

The court also found no palpable and overriding error in the trial judge's factual findings, noting the appellants continued to pay the respondent without complaint until well after completion.

The appellant appealed a trial judge's decision regarding the interpretation of a divorce judgment and the applicable interest rate.

The divorce judgment entitled the respondent to a share of the appellant's pension benefits when he received them.

The appellant argued he did not receive the benefits until he began receiving monthly annuity payments.

The Court of Appeal upheld the trial judge's finding that the appellant received his benefits when he retired early and transferred the funds into a locked-in RRSP, as he had control over them at that time.

The Court also upheld the 10% interest rate specified in the divorce judgment.

The appeal was dismissed.

The appellant appealed an order striking his statement of claim and upholding his expulsion from the respondent yacht club.

The appellant argued he lacked proper notice of the board meeting that led to his expulsion and that the board was biased.

The Court of Appeal upheld the motion judge's findings that proper notice was given and no disqualifying bias existed.

However, the Court found the motion judge erred in striking one paragraph of the statement of claim which pleaded a potentially defamatory statement and discoverability.

The appeal was allowed in part to permit the appellant to file an amended statement of claim regarding that single allegation, but otherwise dismissed with costs to the respondents.

The tenant appealed a decision of the Ontario Rental Housing Tribunal, which had dismissed his claim for general damages on the basis that it lacked jurisdiction.

The tenant and his family had been assaulted by the landlord's friends in an attempt to force them to vacate, breaching the covenant of quiet enjoyment.

The Divisional Court held that the Tribunal erred in law, finding that the residual power to 'make any other order that it considers appropriate' under the Tenant Protection Act includes the jurisdiction to award damages for breach of contract.

The Court allowed the appeal and awarded the tenant $4,000 in damages.

The appellant appealed the trial judge's decision regarding costs and punitive damages.

The Court of Appeal upheld the trial judge's conclusion that the respondent's allegations in its defence and counterclaim did not amount to fraud or improper conduct seriously prejudicial to character or reputation.

The appeal was dismissed with costs fixed at $4,000.

The applicant employer sought judicial review of a labour arbitrator's interim award ordering it to make ex gratia payments to a grieving employee whose sick leave benefits had been terminated.

The Divisional Court held that while the arbitrator's interpretation of the Labour Relations Act as granting jurisdiction for the interim award was unreasonable, his alternative reliance on the collective agreement was not patently unreasonable.

The interim award was upheld and the application for judicial review was largely dismissed.

The appellant insurer appealed a decision certifying a class proceeding regarding the application of deductibles to total loss automobile claims.

After the initial certification motion was remitted by the Court of Appeal, a subsequent five-member panel of the Court of Appeal in a different case (Polowin) reversed the interpretation of the relevant statutory condition, finding that insurers could apply deductibles.

The Divisional Court held that putative class members were not privies to the representative plaintiff prior to certification, meaning issue estoppel did not apply.

As the current law established no cause of action, the certification order was set aside.

The plaintiff brought a class action against the manufacturer of a medical device and the Attorney General of Canada, alleging Health Canada was negligent in its regulation of the device.

The Attorney General moved to strike the claim on the basis that it owed no private law duty of care to the plaintiff.

The motions judge dismissed the motion, finding a full factual record was necessary.

On appeal, the Divisional Court allowed the appeal and struck the claim, holding that it was plain and obvious under the Anns test that the federal government did not owe a private law duty of care to individual consumers of medical devices, and that residual policy considerations negated any such duty.

The appellants appealed an order granting an injunction against them for obstructing access to the respondent's work site during a labour dispute.

The appellants argued that a protocol had been agreed upon and successfully applied by the police.

The Court of Appeal found no palpable and overriding error in the trial judge's finding that no such agreement existed and that the union's imposition of a one-hour delay for entering vehicles amounted to unlawful obstruction.

The court upheld the trial judge's application of the R.J.R-MacDonald factors and dismissed the appeal, subject to removing the union as a named party.

The appellants appealed the judgment of the Superior Court of Justice regarding their liability.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact were supported by the evidence and that she reached the correct result.

Costs were awarded to the respondent in the amount of $10,000.

The Crown appealed the acquittal of a young person charged with a sexual offence.

The trial judge had found the evidence of non-consensual sex overwhelming, except for the complainant's muted response and her accompanying the respondent behind a building.

The Court of Appeal held that the trial judge erred in law by relying on the muted response to raise a reasonable doubt about consent.

The appeal was allowed and a new trial ordered.

The appellant appealed the dismissal of a claim for negligent investigation against the respondent, alleging the respondent provided false information to the police leading to the appellant's wrongful arrest.

The Court of Appeal dismissed the appeal, finding it plain and obvious that no duty of care existed, as it was not reasonably foreseeable that the police would arrest the appellant without independently determining reasonable and probable grounds.

A cross-appeal regarding a conspiracy claim was allowed, dismissing the claim with leave to amend to plead better particulars.

The appellant appealed a trial judgment awarding the respondents $393,431.99 in damages arising from a water slide accident that caused the respondent to suffer a head injury and chronic migraines.

The appellant challenged the trial judge's calculation of future loss of income and future medication costs.

The Court of Appeal upheld the future loss of income award, finding no palpable and overriding error, but reduced the future care costs by $10,000 to account for the expected decreased cost of medication due to generic competition.

The appeal was otherwise dismissed.

Following the dismissal of the appellant's appeal of a summary judgment order, the respondents sought costs of the appeal on a substantial indemnity basis.

The Divisional Court found no evidence of bad faith to justify substantial indemnity costs.

Taking into account the quantum of the claim, the costs previously awarded, and the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, the court awarded partial indemnity costs of $5,000 to the respondent Gaydon and $3,500 to the respondent Burger King.

The applicant sought judicial review of a decision by the Criminal Injuries Compensation Board to cancel a hearing for compensation after the original claimant died of causes unrelated to the alleged assault.

The Divisional Court dismissed the application, holding that the common law principle that a right to compensation terminates with death applies, and section 38(1) of the Trustee Act does not apply to administrative proceedings for compensation from a public fund.

The court also rejected the applicant's argument based on the doctrine of legitimate expectations, finding no evidence of a binding undertaking or official practice by the Board to hold hearings in such circumstances.

Following the disposition of the merits of the appeal on September 25, 2006, the Court of Appeal issued a supplementary endorsement regarding the costs of the application in the court below.

The court set aside the costs order below and awarded the appellants costs of the application fixed at $10,000 all-inclusive.

The applicant applied for an enhanced A-Z driver's licence and submitted a medical report that was equivocal regarding his alcohol use.

The Registrar demanded further medical information, which the applicant refused to provide, resulting in the suspension of his existing 'G' licence.

The Divisional Court dismissed the application, finding that the Registrar's requirement for additional information and subsequent licence suspension were not unreasonable.

The appellants appealed a decision finding that their conduct in registering a condominium declaration with a bifurcated common expense formula was oppressive.

The formula exempted undeveloped parcels from contributing to the maintenance of a ring road.

The Court of Appeal allowed the appeal, holding that the declaration did not conflict with the Condominium Act, as the Act requires owners to contribute in the proportions specified in the declaration.

Furthermore, the developer's conduct was not oppressive because the formula was fully disclosed to purchasers before they bought their units, and it served a legitimate business purpose related to the staged nature of the development.

The appellant appealed a trial judgment upholding the validity of his deceased brother's will, which left the estate to the respondent, the testator's common law partner.

The appellant challenged the due execution of the will, the admissibility of hearsay evidence from a police officer regarding the testator's statements, an award of $10,000 in damages for trespass and conversion, and the denial of his costs out of the estate.

The Court of Appeal dismissed the appeal, finding ample evidence of proper execution, that the hearsay evidence met the necessity criterion, and no basis to interfere with the damages or costs awards.