J. Thomas Curry

The Town of Oakville sought to designate Glen Abbey golf course as a cultural heritage property.

Clublink, the owner, applied under section 34 of the Ontario Heritage Act to demolish and remove the golf course.

The Town argued the application should proceed under section 33, which provides different procedural protections and appeal routes.

The central issue was whether a golf course constitutes a "structure" within the meaning of section 34.

The Court of Appeal held that Glen Abbey, being a product of significant construction and engineering comprising constituent parts intended to remain permanently on the property, was a structure within section 34.

The purposive and contextual interpretation of the statute, considering its legislative history and the evolution of municipal heritage planning beyond a "building-centric" paradigm, supported this conclusion.

The applicant, Clublink, owned the Glen Abbey Golf Course in Oakville and sought to redevelop it into a residential and mixed-use community.

The Town designated Glen Abbey as a cultural heritage property and passed five related by-laws, including a Cultural Heritage Landscape Conservation Plan By-law, authorizing the preparation of a conservation plan that required Clublink to seek Town approval for alterations to the golf course.

The application judge quashed all five by-laws and the conservation plan, finding them ultra vires, passed in bad faith, and void for vagueness.

The Court of Appeal allowed the appeal in part, upholding the validity of the five by-laws but quashing the conservation plan resolution on the basis that it effectively compelled Clublink to continue operating the golf course as a service, contrary to section 11(8)5 of the Municipal Act.

The appellants appealed a Master's decision allowing the respondents to select the appellants' in-house counsel as their representative for examination for discovery.

The in-house counsel also had carriage of the fraud action on behalf of the appellants.

The Superior Court of Justice allowed the appeal, finding that while in-house counsel are not shielded from discovery, requiring counsel of record to attend would be oppressive as it would inevitably prevent him from continuing as counsel, thereby interfering with the appellants' choice of counsel.

The respondents were ordered to select another representative.

The law firm Chitiz Pathak LLP appealed a Master's decision that found "special circumstances" existed to allow Bee Vectoring Technology Inc. to have two sets of legal accounts assessed under the Solicitors Act, despite being outside the statutory time limits or having been paid.

The Master had found special circumstances for the first and second qualifying transactions but not for general corporate matters.

The law firm argued the Master erred in principle by accepting the client's reasons for delay (being too busy and fear of jeopardizing the relationship) as special circumstances.

The court dismissed the appeal, finding no error in principle or palpable and overriding error in the Master's fact-specific inquiry into special circumstances.

The appellants appealed a motion judge's decision enforcing a contingency fee agreement provision requiring them to join in an application under section 28.1(8) of the Solicitors Act for court approval of the inclusion of a percentage of legal costs paid to them as part of the solicitor's contingency fee.

The appellants argued that the provision was unenforceable and that they should have been permitted to oppose the application on the grounds that exceptional circumstances did not exist.

The Court of Appeal upheld the motion judge's decision, holding that the provision was enforceable and that the appellants were required to support the application.

The court also found that exceptional circumstances existed justifying the payment.

Following the dismissal of the plaintiff's summary judgment motion, the successful defendant sought partial indemnity costs of approximately $255,000.

The plaintiff argued the costs should be reserved to the trial judge as the motion's efforts would reduce trial preparation.

The court rejected reserving all costs, noting the motion should not have been brought, but recognized that some work would be useful for trial.

The court issued a hybrid costs order: $100,000 payable forthwith, $77,500 payable in any event of the cause, and $77,500 payable in the cause.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages related to their exclusion from the 2016 Olympic Games.

The defendants brought Rule 21 motions to dismiss or permanently stay the proceeding for lack of jurisdiction and abuse of process, and to strike the statement of claim against McLaren.

The court found that resolving the jurisdictional issues would require extensive fact-finding, including assessing conflicting expert opinions and credibility, which exceeds the scope of a Rule 21 motion.

Consequently, the Rule 21.01(3) motions were ordered to be reconstituted as Rule 20 summary judgment motions or a trial of issues, and McLaren's Rule 21.01(1)(b) motion was deferred.

The plaintiff brought a motion for summary judgment against the defendant for over $25 million USD in a complex action involving allegations of breach of contract and conspiracy.

The court dismissed the motion, finding a surfeit of genuine issues requiring a trial, including highly contested facts regarding pre-contract representations, alleged collusion, and the interpretation of multiple contracts created in a convoluted factual nexus.

The court concluded it would not be in the interests of justice to decide the action summarily.

A lawyer appealed a professional misconduct finding based on in-court incivility during a securities prosecution.

The majority held that reasonableness review applied and accepted the disciplinary framework, but found its application unreasonable on the record.

The Court concluded the allegations were made in good faith with sufficient factual foundation in context.

The appeal was allowed and the complaints were dismissed.

The applicants sought leave to appeal and appeal two commercial arbitration awards concerning Cogeco's breach of Wide Area Network (WAN) agreements.

The Arbitrator had applied damages caps and denied specific performance.

The court denied leave to appeal, finding that the applicants' grounds raised questions of mixed fact and law, not pure questions of law as required by the Arbitration Act.

The court also found the Arbitrator's decisions to be reasonable on the merits, upholding the application of damages caps and the denial of specific performance due to the applicants' failure to demonstrate the absence of a readily available substitute service.

This motion addressed the enforceability of paragraph 16 of a contingency fee agreement between Stockwoods LLP and the plaintiffs, which stipulated that a portion of legal costs obtained in a settlement could be included in Stockwoods' fee, subject to court approval due to exceptional circumstances.

The court also determined whether the plaintiffs were obligated to join Stockwoods in a joint application for such approval under s.28.1(8) of the Solicitor's Act.

The court found paragraph 16 enforceable and binding, compelling the plaintiffs to participate in the joint motion.

This is a costs endorsement following an appeal and cross-appeal to the Court of Appeal for Ontario.

The respondents were successful on both the appeal and cross-appeal.

The court awarded costs to the respondents in the amount of $40,000, inclusive of all disbursements and HST.

The judgment was also varied on consent of the parties to correct two monetary amounts in paragraphs 5 and 7.

Minority shareholders appealed a trial judgment finding oppressive conduct by majority shareholders in a real estate development company.

The trial judge found that the majority had issued too many shares in response to cash calls when the minority shareholder refused to participate, thereby diluting the minority's ownership interest.

The appellate court upheld the trial judge's interpretation of the shareholders' agreement and the calculation of share dilution, with minor adjustments to the valuation calculations.

The court also set aside punitive damages against one defendant due to inadequate notice in the pleadings, and dismissed the appellants' costs appeal.

The representative plaintiff in a class action sought costs following a successful second motion under s. 5(1)(a) of the Class Proceedings Act and a subsequent consent certification.

The court awarded the plaintiff partial indemnity costs of $31,089 for the contested motion.

For the balance of the certification motion, the court ordered a hybrid costs award because the defendants did not communicate their consent in a timely fashion, fixing costs at $65,235, with one-third payable forthwith and two-thirds payable in the cause.

The plaintiffs brought an omnibus motion for certification, settlement approval, class counsel fees, and representative plaintiff honoraria in a class action against 407 ETR.

The action alleged that 407 ETR unlawfully used the plate denial remedy against insolvent vehicle owners, contrary to the stay of proceedings under the Bankruptcy and Insolvency Act.

The court certified the action for settlement purposes and approved a settlement fund of $7,965,800, finding it fair, reasonable, and in the best interests of the class.

The court also approved class counsel's 30% contingency fee and a $10,000 honorarium for each of the three representative plaintiffs.

The appellant, Sky Solar, appealed an arbitration award dismissing its claim for indemnification against the respondent, Marnoch, for losses resulting from fires caused by failed electrical transformers.

The arbitrator found that Marnoch was not liable under the contractual warranties because Sky Solar had chosen the transformers and did not rely on Marnoch's skill and judgment.

The Superior Court of Justice applied the reasonableness standard of review and upheld the arbitrator's decision, finding no extricable errors of law and concluding that the arbitrator's interpretation of the contract and decision not to determine the liability of a non-party manufacturer were reasonable.

The Court dismissed the appeal and held that Ontario’s permit-suspension enforcement mechanism is constitutionally inoperative to the extent it enforces a bankruptcy-provable toll debt discharged under s. 178(2) of the Bankruptcy and Insolvency Act, because it creates an operational conflict and frustrates Parliament’s financial rehabilitation purpose.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.

The court issued supplementary reasons to clarify when the two-year limitation period begins to run for claims arising from unpaid Highway 407 toll invoices.

The dispute concerned whether the limitation period commenced when the debtor’s vehicle permit expired during licence plate denial or when the debtor was first placed into licence plate denial under the Highway 407 Act.

The court held that the limitation period begins when the Registrar places the debtor’s licence plate into licence plate denial.

This interpretation avoids allowing the toll operator to control when the limitation period begins and is consistent with the statutory collection scheme and the principles underlying limitation periods.

The court therefore confirmed that the limitation period in the case began on the date the licence plate was placed into denial.

The applicant College sought costs following its successful motion and application for permanent injunctive relief against the respondents, who were restrained from holding themselves out as regulators or qualified practitioners of traditional Chinese medicine.

The respondents argued they were advancing a public interest constitutional challenge and lacked the ability to pay.

The court found the respondents were attempting to re-litigate issues already decided against them in a previous Divisional Court proceeding, making public interest costs protection inapplicable.

Applying the principles of proportionality and fairness, the court fixed costs payable to the applicant at $75,000, reduced from the $161,066.96 claimed.