J.F. McCartney

The appellants appealed an order granting the Ottawa Police Association a conditional representation order under Rule 12.08 of the Rules of Civil Procedure.

The underlying action involved 74 police officers who transferred from the OPP to the Ottawa Police Services Board and alleged negligent misrepresentation regarding their pension transfers.

The Divisional Court dismissed the appeal, finding that Rule 12.08 does not require an action to benefit all members of an association, nor is it limited to collective actions.

The court upheld the motion judge's findings on common issues and preferable procedure, confirming that a conditional order to substitute an appropriate representative plaintiff was permissible.

The accused applied to challenge the representativeness of the 2014 Thunder Bay jury roll, arguing that Ontario failed to make reasonable efforts to include Indigenous on‑reserve residents, thereby breaching the right to a representative jury under ss. 11(d) and 11(f) of the Charter.

The court applied the test articulated in R. v. Kokopenace, assessing whether the state made reasonable efforts in compiling source lists, delivering jury questionnaires, and encouraging responses.

Evidence showed continued reliance on inaccurate band electoral lists containing off‑reserve members, inadequate review of those lists, high undeliverable rates for jury questionnaires, and extremely low return rates from on‑reserve residents without meaningful remedial action.

The court concluded that the province failed to exercise reasonable diligence in addressing known systemic problems affecting Indigenous representation on jury rolls.

A Charter breach was established.

The plaintiffs brought a motion to amend their statement of claim in a negligence action arising from a fatal motor vehicle collision.

They sought to add claims for post‑traumatic stress disorder suffered by a surviving spouse and related income loss, as well as expanded Family Law Act damages for a child.

The defendants argued the amendment introduced a new cause of action outside the limitation period and improperly pleaded evidence.

The court held the proposed amendment merely added a new head of damages arising from the same material facts already pleaded and therefore did not constitute a new cause of action.

The amendment was permitted, except for portions that improperly pleaded evidentiary details.

Costs were determined following a contested passing of accounts in two related estates.

The estate trustee sought reimbursement of most of his legal costs from the objector, arguing that her lack of cooperation caused the litigation.

The objector sought costs against the estate trustee personally and opposed the trustee recovering costs from the estates.

The court held that modern estate litigation applies ordinary costs principles and found the trustee had been unsuccessful on the principal issues and had unnecessarily retained a second law firm to prepare accounts.

Costs for both parties were fixed at $13,500, with portions payable personally by the trustee and the remainder apportioned between the two estates.

The applicant brought a summary judgment motion in a family law proceeding seeking determinations relating to custody, access, child support, equalization, and distribution of matrimonial home proceeds following separation.

The court severed the divorce claim from the corollary relief and proceeded with summary judgment under the Family Law Rules.

Custody of the children was granted to the applicant based on the best interests of the children and the parties’ poor relationship, which undermined the feasibility of joint custody.

The respondent was granted supervised access for three months followed by unsupervised access similar to the pre‑existing arrangement.

Ongoing child support was ordered based on the respondent’s income along with retroactive child support, equalization adjustments, and distribution of sale proceeds of the matrimonial home.

The appellants appealed an order directing the sale of a residential property they co-owned as tenants in common with the respondent.

The appellants sought physical partition instead of sale.

The Divisional Court dismissed the appeal, finding that the property's configuration and the appellants' failure to pay municipal taxes and insurance made partition impractical and sale the most beneficial option.

The respondent's cross-appeal to purchase the appellants' share at a fixed price was dismissed, as joint tenants are entitled to the fair market value obtained through an open market sale.

The respondent was awarded costs for both the application and the appeal.

The applicant sought judicial review of two decisions by the Ontario Judicial Council dismissing his complaints against a judge acting as a public inquiry commissioner.

The Council had dismissed the complaints on the basis that they concerned the judge's decision-making duties, which are subject to judicial review, rather than judicial misconduct.

The Divisional Court dismissed the application, finding the Council's decisions were reasonable and that the application was barred by unreasonable delay of up to 69 months.

The appellant appealed a motion judge's decision striking his statement of claim.

The appellant sought an order from the Ontario court quashing a British Columbia Supreme Court decision that declared him a vexatious litigant, and sought interim compensation for lost teaching salary under a BC collective agreement.

The Divisional Court dismissed the appeal, agreeing that the claim disclosed no cause of action and that Ontario courts have no jurisdiction to overturn a BC court order or remedy a violation of a BC collective agreement.

The court found no real and substantial connection to Ontario.

Following the dismissal of a motion by certain defendants to strike the statement of claim, the court addressed the plaintiffs’ entitlement to costs.

The plaintiffs sought substantial indemnity costs based on a rejected settlement offer made prior to the motion.

The court held that while the plaintiffs were entitled to costs as the successful parties, the complexity of the case and the reasonableness of bringing the pleadings motion did not justify substantial indemnity.

Considering the scope of the motion materials and the time required for the hearing, the court reduced the claimed amount.

Costs were awarded on a partial indemnity basis in the amount of $5,000 inclusive of HST, payable forthwith by the moving defendants.

The court determined costs following the striking of a notice of appeal for lack of jurisdiction and the dismissal of a related motion in a family law proceeding.

The self‑represented applicant had alleged bad faith against the respondent’s counsel, requiring the respondent’s counsel to retain separate counsel to address both the appeal and motion.

Bills of costs were filed by both counsel.

While acknowledging the applicant’s self‑represented status and financial circumstances, the court found the claimed costs reasonable and only slightly reduced them.

Costs were awarded to the respondent in the amount of $3,800 inclusive of HST.

The defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the plaintiffs’ statement of claim on the basis that it disclosed no reasonable cause of action, or alternatively to strike portions alleged to be scandalous, frivolous, or vexatious under Rule 25.11.

The claim alleged that the defendants conspired to remove the plaintiffs from corporate control and divert the business of two companies to another entity controlled by the defendants.

The court held that, assuming the pleaded facts to be true, the statement of claim disclosed multiple viable causes of action including breach of contract, breach of fiduciary duty, unjust enrichment, inducing breach of contract, civil conspiracy, and breaches of corporate duties.

The court also declined to strike contextual narrative allegations from the pleading, finding they were not so egregious as to warrant removal.

The motion was dismissed, with the court noting that a demand for particulars would have been the more appropriate procedural step.

The plaintiff brought a motion for leave to extend the time for serving a Notice of Appeal and Certificate Respecting Evidence following a Small Claims Court decision dismissing his property damage claim.

The delay in service was primarily caused by the court sending an unsigned, undated copy of the decision, followed by a delayed signed copy.

The Divisional Court granted the motion, finding that the plaintiff formed the intent to appeal in time, the 14-day delay was largely the court's fault, there was no prejudice to the defendant, and the justice of the case favoured granting relief.

No costs were awarded.

The applicant brought a motion seeking an extension of an ex parte restraining order against her spouse under family law proceedings.

The order had temporarily prevented the respondent from attending the matrimonial home.

The respondent opposed the extension and alleged the motion was intended to remove him from the home rather than address safety concerns.

The court found the alleged threats constituted verbal conflict within a volatile marital relationship but were unlikely to result in violence given the parties’ history and absence of prior violence.

The court concluded there was insufficient justification to continue the restraining order.

The counter-applicant brought a motion to dismiss the counter-application against certain respondents, join Ontario as a respondent, consolidate the application and counter-application, and convert the consolidated applications to an action.

The first three requests were granted on consent.

The request to convert the application to an action was contested.

The court dismissed this request, finding that the facts regarding the dedication of the disputed road as a public highway were clear and uncomplicated, and credibility was not in issue.

The plaintiffs brought a medical malpractice action alleging that the defendant family physician's negligence during the mother's pregnancy and delivery caused the infant plaintiff to be born with cerebral palsy.

The plaintiffs argued the doctor failed to properly monitor the mother's hypertension, failed to refer her to an obstetrician, and negligently prescribed enalapril, an ACE inhibitor, shortly before birth.

The Superior Court of Justice dismissed the action, finding that the doctor met the standard of care of a family physician in the circumstances and that his clinical judgments were reasonable.

Furthermore, the court concluded that the plaintiffs failed to prove on a balance of probabilities that the enalapril or the mother's hypertension caused the infant's injuries, which were likely the result of an acute intrauterine event such as cord compression.

Maternal grandparents brought a motion for interim custody of a young child following an ex parte order obtained after the mother attempted suicide.

The mother brought a cross‑motion seeking the child’s return.

The court considered the best interests of the child under the Children's Law Reform Act and emphasized that interim custody decisions should generally maintain the true status quo unless strong evidence justifies disruption.

The court found the status quo was the child’s care with the mother since birth, and that the suicide attempt was not serious and was connected to a volatile relationship with the child’s father rather than parenting incapacity.

Evidence from child protection services and support workers indicated no concerns with the mother’s parenting.

Interim custody was returned to the mother with structured access for the grandparents.

The plaintiff brought a motion under Rule 36 of the Rules of Civil Procedure seeking leave to examine a former defendant and corporate executive before trial.

The witness had relocated outside Canada and the plaintiff argued the examination was necessary to preserve potentially crucial evidence regarding the hiring of a defendant.

The defendants opposed the motion, arguing that witnesses should generally testify at trial, particularly before a jury, and that alternative mechanisms such as letters rogatory were available.

The court held that Rule 36 was designed for circumstances where a witness may be outside the jurisdiction and could possess important evidence.

Leave was granted to conduct a pre‑trial examination of the witness, with the examination to be videotaped and undertakings completed beforehand.

The applicants brought a motion for an interim stay of an Ontario Labour Relations Board decision pending judicial review.

The applicants argued that the Board's decision lacked procedural fairness due to inadequate notice, refusal of an adjournment, improper production orders, and unconstitutional reverse onus provisions.

The court applied the three-part test for an interim stay and found that the applicants failed to establish a strong prima facie case for review.

The motion was dismissed, and costs were awarded to the respondent union.

In an uncontested family law application between former common-law partners, the applicant sought custody of a minor child, child support and arrears, a restraining order, exclusive possession of the jointly owned home, and financial disclosure.

The court granted custody and ordered ongoing child support based on imputed income where the respondent’s current income was unknown.

Retroactive support for an adult child was refused as the child was no longer entitled to support.

Claims for a restraining order and exclusive possession of the home were dismissed, as the property was not a matrimonial home under the Family Law Act and the evidence did not establish unjust enrichment to support a constructive trust.

Annual financial disclosure was ordered.

In an uncontested divorce trial, the applicant sought divorce, child support, spousal support, section 7 expenses, equalization of net family property, continuation of extended health benefits, exclusive possession of the matrimonial home, and costs.

The court imputed income to the respondent of $100,000 due to failure to provide financial disclosure and set the applicant’s income at $28,000.

Child support and spousal support were ordered based on those incomes, and section 7 educational expenses were apportioned proportionally.

The court accepted the applicant’s amended net family property statement, resulting in an equalization payment owed by the applicant to the respondent.

Extended health benefits were ordered to continue through the respondent’s employment and costs were awarded to the applicant.