J. Douglas Cunningham

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 applicant sought an order of prohibition to prevent the Human Rights Tribunal of Ontario from hearing a complaint referred to it by the Ontario Human Rights Commission.

The Divisional Court allowed the application, finding that the Tribunal lacked jurisdiction to hear and determine the complaint, and that the Tribunal was incorrect or unreasonable in deciding it had jurisdiction.

The complaint was dismissed, with detailed reasons to follow.

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.

The appellants, employees at the Joyceville prison, brought an action against the Attorney General of Canada after an employee address listing circulated among the inmate population.

The motions judge struck the claims for breach of fiduciary duty and breach of s. 7 of the Charter on a Rule 21 motion.

The Court of Appeal allowed the appeal, finding that it was not plain and obvious that the claims could not succeed.

The court held that whether a fiduciary relationship existed and whether the release of private information engaged s. 7 of the Charter were questions best left for trial.

The appellant appealed a decision appointing the Public Guardian and Trustee as his litigation guardian.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's conclusion that the appellant was under a disability and unable to understand information relevant to making decisions in the litigation.

The appellant appealed the dismissal of her civil action against the Crown and the Attorney General of Ontario.

The Court of Appeal held that her claim for malicious prosecution was statute-barred under section 7 of the Public Authorities Protection Act, as it was commenced more than six months after the cause of action arose.

The court found no air of reality to her allegations of malice or her Charter claims, noting she failed to plead material facts.

The court also held that the civil action was an improper collateral attack on a final criminal court decision.

The appeal was dismissed without costs.

The applicants sought partial indemnity costs following the dismissal of their application for judicial review regarding the closure of two long-term care institutions.

Although unsuccessful on the main issue of the Minister's statutory power to close the facilities, the applicants achieved partial success on the issue of consent for relocating residents.

The Divisional Court awarded the applicants a portion of their costs, emphasizing the importance of access to justice and the applicants' role in advocating for the fundamental interests of approximately 1,000 severely disabled adults.

The appellants appealed an order vacating their construction lien and dismissing their action for failing to set the matter down for trial within the two-year limitation period under section 37(1) of the Construction Lien Act.

The appellants argued it was impossible to set the action down because the fundamental issue of whether the work was lienable was under reserve by the Divisional Court at the time the limitation period expired.

The Divisional Court dismissed the appeal, finding that there was no practical or legal impossibility preventing the appellants from complying with the strict statutory requirements.

The City of London appealed a decision granting the respondents' application to overturn the Chief Building Official's (CBO) refusal to issue unconditional building permits.

The CBO had issued permits conditional on the repair of a defective gabion wall on the property, which was subject to a site plan agreement.

The Divisional Court allowed the appeal, finding that the trial judge erred in concluding the CBO acted outside his statutory authority.

The Court held that site plan approval constitutes 'applicable law' under the Building Code Act, and the CBO lawfully imposed conditions bearing a logical nexus to the property's use and the ongoing maintenance obligations in the site plan agreement.

The appellants appealed an order vacating their construction lien and dismissing their lien action for failing to set the action down for trial within the two-year statutory limitation period under the Construction Lien Act.

The appellants argued it was impossible to set the action down because the fundamental issue of whether the work was lienable was under reserve by the Divisional Court at the time the limitation period expired.

The Divisional Court dismissed the appeal, finding that there was no practical or legal impossibility preventing the appellants from complying with the strict statutory requirements to set the action down for trial.

The appellant wife appealed an order setting aside final orders made at an uncontested trial regarding custody, access, and support.

The respondent husband's pleadings had previously been struck.

The motion judge set aside the final orders relying on Rule 15(14) of the Family Law Rules and the court's inherent jurisdiction.

The Divisional Court allowed the appeal, holding that Rule 15(14) applies only to motions to change, not set aside, final orders.

The court further found that the stringent tests for setting aside a default judgment or invoking inherent jurisdiction were not met, and the motion judge made palpable and overriding errors regarding disclosure.

The appellant mother appealed a trial judgment granting Crown wardship of her 8-year-old child without access, with a view to adoption.

The child had been in the temporary care of the respondent society due to the mother's psychiatric problems and the child's own needs.

Expert psychiatric evidence at trial strongly recommended against continued access, emphasizing the child's need for stability and permanency through adoption.

The Divisional Court found no palpable and overriding error or error of law in the trial judge's decision to terminate access.

The appeal was dismissed.

The appellants appealed a decision of the Ontario Rental Housing Tribunal terminating their tenancy and ordering them to pay repair costs.

The appellants argued the Tribunal erred in law by making findings unsupported by evidence and failing to exercise discretion under section 84 of the Tenant Protection Act.

The Divisional Court dismissed the appeal, finding ample evidence supported the conclusion that the tenants caused damage beyond normal wear and tear.

The Court also held the Tribunal member properly considered section 84 and reasonably concluded it would be unfair to the landlord to continue the tenancy.

The appellants appealed a trial judge's finding that the respondent undertook property renovations in detrimental reliance on the appellants' negligent misrepresentations.

The Divisional Court allowed the appeal, finding the trial judge committed a palpable and overriding error.

The evidence showed the respondent commenced renovations long before any representation was made, and the trial judge failed to establish a substantial connection between the alleged losses and the misrepresentations.

The trial decision was set aside and the claim dismissed.

The appellant landlord appealed a decision of the Ontario Rental Housing Tribunal which found that monthly administrative fees charged to tenants over and above the cost of hydro constituted illegal rent.

The landlord argued the issue fell under the jurisdiction of the Ontario Energy Board.

The Divisional Court dismissed the appeal, holding that the Tenant Protection Act is remedial legislation that takes precedence over the Ontario Energy Board regulation.

The Court found the Tribunal's decision that the additional charges were illegal and had to be refunded was reasonable and correct.