John E. Summers

The applicant school board sought judicial review of an arbitrator's decisions allowing a union grievance regarding the calculation of instructional minutes under a collective agreement.

The dispute centered on whether 'early bells' at certain schools required students to enter before the published start time, thereby exceeding the 300-minute instructional day cap.

The Divisional Court quashed the arbitrator's decisions, finding that the arbitrator fundamentally misapprehended the nature of the grievance and the evidence, and unreasonably awarded compensation without proof that teachers worked additional minutes or performed different duties.

The matter was remitted to a different arbitrator.

The plaintiff brought a motion to set aside a registrar’s administrative dismissal of her personal injury action for delay.

The action arose from alleged injuries caused by a defective gas fire appliance in a condominium unit.

The court considered the contextual factors governing relief from dismissal for delay, including explanation for delay, inadvertence in missing deadlines, diligence in bringing the motion, and prejudice to the defendants.

Although procedural deadlines had been missed and the action had experienced delays, the court accepted that the delays were explained by changes in counsel, health issues, and difficulties obtaining documents from former lawyers.

Finding no demonstrated prejudice to the defendants and that the plaintiff acted promptly once aware of the dismissal, the court set aside the registrar’s order and directed the defendants to schedule a case conference.

The appellant husband appealed three provisions of a final order made at a settlement conference regarding retroactive child support, retroactive spousal support, and ongoing spousal support.

The Divisional Court found that the conference judge bullied the self-represented husband into an equivocal consent, misinformed him about the law, made inappropriate comments about his cultural background, and denied him procedural fairness.

The appeal was allowed, and the support provisions were set aside without prejudice to the wife's claims.

Following a nine-day custody trial, the respondents sought costs against the applicant.

The court found the applicant was largely unsuccessful in seeking custody or joint custody and obtained only limited access, far less than requested in pleadings, opening statements, or settlement offers.

The respondents’ positions and settlement offers were closer to the trial outcome, though aspects of their conduct were criticized, including limited bad-faith conduct during an earlier period and a contempt finding against one respondent.

Applying the Family Law Rules regarding success, offers to settle, and litigation conduct, the court awarded the applicant costs for the contempt finding but otherwise granted partial indemnity costs to one respondent.

After set-off, the applicant was ordered to pay net costs to that respondent.

The applicant step-mother sought joint custody and extensive access to her nine-year-old step-daughter following her separation from the respondent father.

The biological parents, who shared custody, opposed the application and sought to limit access, citing the child's resistance and the high conflict between the parties.

The court found that all three adults contributed to the deterioration of the child's relationship with the applicant.

The court denied joint custody but ordered limited, graduated access, conditional on all parties attending mandatory counseling to repair the relationship.

The respondent father was also found in contempt for failing to facilitate court-ordered access.

Additionally, the court resolved child support for the parties' biological child based on current income and ordered the applicant to remove the respondent from a joint line of credit.

The applicant school board sought judicial review of an arbitrator's award which found that certain technology integrators, hired as independent contractors through a third party, were actually employees of the board and 'teachers' within the respondent union's bargaining unit.

The Divisional Court held that the standard of review was reasonableness.

The court found the arbitrator's decision unreasonable because he conflated the workers' desire to become employees with a legal intention to form an employment relationship, and his analysis of whether they were teachers was logically flawed.

The application for judicial review was allowed, the award quashed, and the matter remitted for rehearing.

The appellants appealed a trial judgment finding them jointly liable for publishing a defamatory 'News Release' on the internet.

The appellant Scharf abandoned her appeal.

The appellant Paquin argued the trial judge erred in finding she participated jointly in the publication, claiming she had no control over the co-defendant's decision to publish the information.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the appellant provided the defamatory information with the understanding and intention that it would be published, based on admissions in her statement of defence.

The appellants, tenants in a land-lease community, appealed a Rental Housing Tribunal decision terminating their tenancies.

The respondent landlords sought to evict the tenants to fulfill severance conditions and build retirement homes on the property.

The Divisional Court upheld the Tribunal's findings that the landlords required the lands in good faith within a reasonable time, were not in serious breach of their maintenance obligations, and that it was not unfair to grant the eviction.

The appeal was dismissed with costs.

The appellant appealed a Master's decision granting summary judgment dismissing her counterclaim against the respondent school board.

The counterclaim originally sought educational supports for her daughter or damages to fund private education.

After the school board agreed to provide the supports, the Master found the counterclaim moot.

The appellant sought to pursue damages on unpleaded grounds.

The Divisional Court dismissed the appeal, finding the Master was correct as the pleaded claim was moot and the appellant had not moved to amend her pleadings.

The appellant lender appealed the dismissal of its claim against a law firm that acted for both sides in a loan transaction, alleging conflict of interest and failure to advise on risks.

The respondent mortgagors cross-appealed, arguing the mortgage was invalid because the law firm failed to insist the wife obtain independent legal advice.

The Court of Appeal dismissed both appeals, upholding the trial judge's findings that no disqualifying conflict existed, the lender would have proceeded regardless of further advice, and the wife would have signed the mortgage even with independent legal advice because the loan benefited her family.

The appellant, an exceptional pupil, was transferred to a different school by the school board due to safety concerns while an appeal regarding his special education placement was pending.

The appellant sought judicial review, arguing the transfer circumvented the statutory stay of his placement pending appeal.

The Court of Appeal held that while a principal may exclude an exceptional pupil from a school for legitimate safety reasons under the Education Act, the board cannot alter the pupil's placement by transferring them to a different school while an appeal is pending.

The appeal was ultimately dismissed as moot because the pupil's placement had already been finally determined by the Special Education Tribunal.