J. Thomas Curry

The Niagara Escarpment Commission applied for judicial review of a Joint Board decision granting conditional approval to Walker Aggregates Inc. to develop a quarry in the Niagara Escarpment Plan area.

The applicant argued the Board failed to properly apply the Niagara Escarpment Plan, improperly delegated approval of an Adaptive Management Plan to the Minister of Natural Resources, and erred in assessing noise impacts.

The Divisional Court dismissed the application, finding the Board's decision reasonable, as it correctly applied the relevant planning documents, did not improperly delegate its authority, and reasonably assessed environmental and noise impacts.

The appellants, former officers of Coventree Inc., appealed a decision of the Ontario Securities Commission finding that they authorized, permitted, or acquiesced in Coventree's failure to disclose material changes in its business, contrary to section 75 of the Securities Act.

The Commission had found that changes to credit rating criteria and a subsequent disruption in the asset-backed commercial paper market constituted material changes requiring immediate disclosure.

The Divisional Court applied a reasonableness standard of review, concluding that the Commission applied the correct legal tests, based its findings on sufficient evidence, and reasonably exercised its public interest jurisdiction in sanctioning the appellants.

The appeals were dismissed.

The plaintiffs, twin brothers born prematurely who developed cerebral palsy, sued their mother's obstetrician for negligence.

The trial judge found the obstetrician breached the standard of care by failing to assess the mother when she reported leaking fluid, resulting in a failure to administer a full course of antenatal corticosteroids (ACS).

The trial judge concluded this failure caused the twins' cerebral palsy and awarded damages.

The obstetrician appealed the causation finding.

The Court of Appeal dismissed the appeal, with the majority holding that the trial judge made no palpable and overriding error in applying a robust and pragmatic approach to the expert evidence and concluding that the failure to administer ACS caused the injuries.

Following the release of the court's reasons for judgment on an appeal, the respondent Aviva Canada Inc. requested that the court reopen its decision based on a recently released Supreme Court of Canada decision regarding the standard of review.

Aviva argued that the new decision altered the applicable standard of review from reasonableness to correctness due to concurrent jurisdiction provisions in the Insurance Act.

The court denied the request, noting that the parties did not agree an error had been made and finding that it was not in the interests of justice to withdraw the reasons and rehear the case on the merits.

The court considered whether a single-purpose corporate purchaser seeking specific performance after a failed land transaction was exempt from the mitigation principle in contract damages.

The majority held that incorporation benefits carry corresponding burdens, including reasonable mitigation efforts where substitute opportunities are available.

It concluded the purchaser lacked a substantial and legitimate basis to avoid mitigation and that the evidentiary record supported available comparable development opportunities.

The dissent would have restored trial damages, finding no palpable and overriding error on mitigation opportunity and reasonableness.

The appeal and cross-appeal were both dismissed, leaving the appellate reduction to nominal damages in place.

The appellant was struck by a car and suffered significant physical injuries that led to chronic pain and mental disorders.

She applied for enhanced statutory accident benefits, claiming a catastrophic impairment under s. 2(1.1)(g) of the SABS.

A designated assessment centre and an arbitrator found she met the criteria because she had a marked impairment in one category of daily living, and they included physical pain in their assessment of her mental disorder.

The director's delegate upheld this decision.

The Divisional Court overturned the delegate's decision on judicial review.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by applying a correctness standard of review.

Applying the reasonableness standard, the Court of Appeal found the delegate's interpretation of s. 2(1.1)(g)—that a single marked impairment is sufficient and that physical pain can be considered cumulatively with a mental disorder—was reasonable.

The Superintendent of Bankruptcy sought to appeal a Superior Court decision that found no operational conflict between the Highway 407 Act's vehicle permit denial provisions and the Bankruptcy and Insolvency Act's discharge provisions.

The Superintendent had not been a party to the lower court proceedings. 407 ETR moved to quash the appeal for lack of standing.

The Court of Appeal held that while the Superintendent does not have an automatic right to appeal as a non-party, the court has jurisdiction under s. 193(e) of the BIA to grant leave to appeal in exceptional circumstances.

Finding that the Superintendent was deprived of notice below and raised issues of systemic importance, the Court granted an extension of time and leave to appeal.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.

The applicant, a former NHL referee, brought a motion to vary an order that quashed his affidavit filed in support of an application for judicial review of an Ontario Labour Relations Board decision.

The Divisional Court allowed the motion in part, finding that the motions judge erred in striking portions of the affidavit that went to an essential finding of fact regarding anti-union animus and alleged denials of procedural fairness.

The court reinstated specific paragraphs of the affidavit while upholding the exclusion of the remainder.

Following a merits decision finding that Coventree Inc. and its senior officers, Geoffrey Cornish and Dean Tai, failed to disclose material changes in breach of the Securities Act, the Ontario Securities Commission held a hearing to determine sanctions and costs.

The Commission emphasized the fundamental importance of timely disclosure to the integrity of capital markets.

While noting mitigating factors such as the respondents' lack of intent to mislead and their cooperation with Staff, the Commission imposed significant administrative penalties to achieve specific and general deterrence.

Coventree was ordered to pay a $1 million penalty and $250,000 in costs, while Cornish and Tai were each ordered to pay a $500,000 penalty and were prohibited from acting as directors or officers of a reporting issuer for one year.

The applicant, a former NHL referee, sought judicial review of an Ontario Labour Relations Board decision dismissing his claim that he was terminated for union activity.

On the judicial review application, the applicant filed a 32-page affidavit.

The respondent NHL brought a motion to strike the affidavit.

The Divisional Court granted the motion, holding that affidavit evidence on judicial review is only admissible to show a complete absence of evidence on an essential point or a breach of natural justice.

The court found the applicant was improperly attempting to re-weigh the evidence before the Board.

The appellants appealed a trial judgment finding them liable for solicitor negligence in failing to seek instructions on whether a mortgage should be registered on all three parcels of land.

The Court of Appeal dismissed the appeal, finding that any error regarding issue estoppel had no effect on the outcome, as the measure of damages would be the same.

The Court also upheld the trial judge's award of compound interest at the mortgage rate of 8.4 percent, confirming that compound interest can be awarded as compensation in a solicitor's negligence case rooted in a mortgage transaction.

The appellant appealed a civil forfeiture order regarding a property where police discovered a sophisticated marijuana grow operation.

The appellant claimed he had leased the property to a man he met at a casino and had no knowledge of the operation, which the application judge rejected.

The Court of Appeal dismissed the appeal, finding no error in the application judge's factual findings, his conclusion that there was no evidence to rebut the presumption of unlawful activity, or his determination that forfeiture was in the interests of justice.

The appellant commenced a fraudulent conveyance action against the respondent, which was stayed when the respondent filed for bankruptcy.

The appellant later obtained an order under s. 38 of the Bankruptcy and Insolvency Act to bring proceedings in its own name.

The motion judge dismissed the action as statute-barred, finding that the trustee's discoverability date governed.

The Court of Appeal allowed the appeal, holding that under s. 12(1) of the Limitations Act, 2002, the relevant discoverability date is the earlier of the trustee's or the creditor's.

Since the creditor discovered the claim before the new Limitations Act came into force, no limitation period applied.

The respondent suffered a Colles' fracture and underwent closed reduction surgery performed by the appellant emergency room doctor.

The appellant failed to take a post-cast x-ray and failed to inform the respondent of the high risk of displacement and the need for weekly x-rays.

The respondent's wrist did not heal properly, requiring multiple corrective surgeries.

The trial judge found the appellant negligent and awarded $90,000 in general damages.

On appeal, the Court of Appeal upheld the findings of negligence and causation regarding the failure to inform, but found the trial judge erred in assessing general damages by holding the appellant responsible for all consequences of the fracture rather than just the incremental harm caused by the delayed detection of displacement.

The appeal was allowed in part, reducing general damages to $30,000.

The applicants sought judicial review of an interlocutory decision of the Ontario Racing Commission dismissing their motion for a stay of proceedings based on alleged inadequate disclosure and delay.

The Divisional Court dismissed the application, finding that the Commission reasonably concluded that the disclosure order had been complied with, correctly applied the Stinchcombe test for disclosure, and did not deny procedural fairness or improperly shift the onus of proof.

The appellant plastic surgeon appealed a trial judgment finding her liable for medical negligence based on a lack of informed consent.

The respondent underwent breast reconstruction surgery and suffered severe delayed wound healing.

The trial judge found that while the appellant met the standard of care in performing the surgery, she failed to adequately disclose the likelihood and consequences of delayed wound healing given the respondent's specific risk factors (obesity, smoking, and previous abdominal scarring).

The Court of Appeal upheld the trial judge's findings, concluding that the trial judge correctly applied the law of informed consent and the modified objective test for causation, finding that a reasonable person in the respondent's circumstances would not have proceeded with the surgery had adequate disclosure been made.

The appellant school board breached an agreement of purchase and sale by failing to use its best efforts to obtain a severance for a parcel of land.

The respondent purchaser sued for specific performance or damages.

The trial judge awarded damages for lost profits.

On appeal, the Court of Appeal upheld the finding of breach but allowed the appeal on the issue of mitigation.

The Court found that the respondent, a single-purpose company, admitted it had no intention of mitigating its damages and took no steps to do so, despite its parent company purchasing other comparable properties.

The judgment was set aside and nominal damages of $1 were substituted.

The appellant lawyer was found guilty of professional misconduct by a Law Society Hearing Panel for sexually harassing a client and an employee.

The case turned entirely on credibility, with the appellant denying all allegations.

The Hearing Panel's decision was overturned by the Appeal Panel but reinstated by the Divisional Court.

On further appeal, the Court of Appeal held that the Hearing Panel's reasons were so inadequate as to foreclose meaningful appellate review.

The reasons consisted of generic generalities, unexplained conclusory observations, and failed to articulate any analysis of the appellant's evidence.

The Court allowed the appeal and remitted the matter for a new hearing.

Following an appeal in which the respondents were largely successful, the Court of Appeal for Ontario issued a costs endorsement.

The court ordered the appellants to pay the respondents' costs of the appeal, fixed at $50,000 inclusive of disbursements and GST.