Josephine Stark

The Court of Appeal for Ontario dismissed Enbridge Gas Inc.'s appeal, upholding the Divisional Court's finding that the 1957 franchise agreement between Enbridge and the County of Essex had not expired under the rule against perpetuities.

The court found that the Ontario Energy Board (OEB) erred in law by misapplying the rule against perpetuities, focusing on the duration of the right rather than the vesting of the interest.

The court also held that the Divisional Court was not bound by its earlier decision in Dawn-Euphemia and that the OEB could not impose a new franchise agreement unless the existing one had lapsed or was about to lapse.

The appellant municipality appealed an Ontario Energy Board (OEB) decision that approved the renewal of a natural gas franchise agreement with the respondent utility.

The OEB had found that the original 1957 franchise agreement expired by operation of the common law rule against perpetuities and ordered a renewal based on the OEB's Model Franchise Agreement.

The Divisional Court allowed the appeal, holding that while the OEB had jurisdiction to decide the issue, it erred in law by finding the agreement expired.

The Court determined that the utility's rights under the 1957 agreement were vested, not future contingent interests, and therefore the rule against perpetuities did not apply.

The plaintiff's action for breach of a research agreement was dismissed at trial, and the defendant university's counterclaim was allowed.

The defendant sought its costs of the proceeding on a substantial indemnity basis, arguing that the plaintiff made unfounded allegations of fraud and deceit against the university and its personnel.

The court agreed, finding that the plaintiff's principal directed the litigation and used the court process to advance baseless and egregious allegations, constituting an abuse of process.

The court awarded the defendant $640,589.62 in substantial indemnity costs and held the plaintiff's principal personally liable for $150,000 of that amount as a non-party.

The defendants brought a motion for leave to appeal an order dated February 28, 2023.

The Divisional Court denied the motion for leave to appeal and awarded costs to the responding parties fixed at $3,900 all inclusive.

The plaintiff, Sunsource Grids Inc., brought an action against the University of Windsor for $40 million in damages, alleging breach of a research agreement, misrepresentation, and intentional interference with economic relations regarding the development of a solar PV switch technology.

The University counterclaimed for breach of contract due to the plaintiff's failure to provide required in-kind contributions.

Following a 50-day trial, the court dismissed the plaintiff's action, finding that the University did not breach the agreement or act in bad faith.

The court held that the plaintiff's failure to supply necessary components was a condition precedent that excused the University's inability to deliver a hardware prototype.

Furthermore, the court found the plaintiff's claimed damages for loss of future profits were too remote, excluded by the contract's consequential damages clause, and based on a technology that was not commercially viable.

The University's counterclaim was allowed, and the plaintiff was ordered to pay $21,800 for its breach of contract.

An appeal from a trial judgment upholding the validity of a codicil executed by an 87-year-old mother that changed her will to leave the residue of her estate to one son instead of dividing it equally between two sons.

The appellant son challenged the codicil on grounds of lack of testamentary capacity, undue influence, and coercion.

The trial judge found the codicil valid after a 10-day trial.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings regarding testamentary capacity, knowledge of assets, and the absence of undue influence or coercion.

The moving party, an 81-year-old man, brought a motion to transfer an application regarding his capacity and powers of attorney from Oshawa to Windsor.

The court considered the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, noting that the moving party resides in Windsor, the capacity assessments occurred there, and a related application was already commenced in Windsor.

Given the moving party's age, health, and the location of witnesses, the court found it in the interests of justice to transfer the proceeding to Windsor.

The deceased left his entire estate to his second wife and named his brother as executor, with his estranged daughter as the alternate.

After the brother renounced, the daughter retained a law firm to administer the estate despite opposition from the widow, who was the sole beneficiary.

The widow successfully applied to pass over the daughter as executor.

The daughter's law firm then brought a charging motion against the estate for their legal fees, as the daughter refused to pay them.

The court dismissed the motion, finding that the daughter had no legitimate motive to administer the estate and the legal steps taken were unreasonable.

The law firm was directed to seek payment directly from the daughter.

The appellant, acting as power of attorney for his incapacitated father, appealed an application judge's order that released frozen joint funds to the respondent wife, granted her sole authority over a jointly owned Florida property, awarded her $900 per month in spousal support, and ordered the appellant to personally pay $13,500 in costs.

The Court of Appeal allowed the appeal in part.

The court upheld the release of the joint funds and the personal costs award based on the appellant's litigation conduct.

However, the court ordered the partition and sale of the Florida property nunc pro tunc, finding the appellant had authority to sever the joint tenancy.

The court also reduced the spousal support award to $300 per month, noting the application judge failed to consider the father's capacity to pay.

The Court of Appeal issued an addendum to its oral reasons released on April 24, 2015, which allowed the appeal and dismissed the cross-appeal.

On consent of counsel, the Court added a declaration that the appellant is the sole surviving spouse of the deceased and is entitled to receive all surviving spouse pension benefits from the respondent benefit administrators corporation.

The appellant appealed a motion judge's decision interpreting a Separation Agreement between the appellant and her deceased husband.

The agreement stipulated that if the husband died before his pension came into pay, the appellant would be considered the sole surviving spouse and receive all benefits.

The motion judge erred by confusing the terms for when the pension was in pay versus death before pay, and by finding a conflict between s. 48(3) and s. 48(13) of the Pension Benefits Act.

The Court of Appeal held that s. 48(13) gives statutory priority to domestic contracts.

The appeal was allowed and the cross-appeal dismissed.

The plaintiffs brought an action for damages after a student suffered a brain injury following an altercation with another student during a morning playground game at school.

The claim alleged negligent supervision by the school board, principal, and teachers, inadequate supervision planning, and failure to identify the students as requiring heightened monitoring due to prior behavioural issues and bullying.

The court applied the prudent parent standard under the Education Act and relevant case law governing school supervision.

It found that the school maintained an adequate supervision plan and that supervising teachers were circulating appropriately at the time of the incident.

The altercation occurred suddenly during an otherwise acceptable playground activity and would likely not have been prevented even with additional supervision.

The plaintiff's action was dismissed for delay by the Registrar.

The Master set aside the dismissal, finding the delay was inadvertent and there was no actual prejudice to the defendants.

On appeal, the Superior Court judge reinstated the dismissal, finding the Master misapprehended the evidence and failed to consider the public interest in finality.

The Court of Appeal allowed the plaintiff's appeal and reinstated the Master's order, holding that the Master's discretionary decision was entitled to significant deference and his findings were reasonable.

The defendants appealed a master's order setting aside an administrative dismissal of a personal injury action.

The motion judge found that the master misapprehended the evidence regarding the explanation for extensive litigation delay and improperly characterized counsel’s conduct as mere inadvertence.

The court held that the plaintiff’s counsel had effectively abandoned the file through poor organization, lack of supervision, and failure to monitor service of the statement of claim.

Applying the contextual approach from Scaini and the Reid factors, the court emphasized the public interest in finality of litigation.

The appeal was allowed and the administrative dismissal was reinstated.