Kathryn N.M. van Rensburg

In a securities class proceeding, the plaintiffs sought costs following successful motions in which they opposed summary judgment and obtained nunc pro tunc relief permitting pursuit of a statutory claim despite the expiry of a limitation period under the Securities Act.

The defendants argued that no costs should be awarded due to alleged delay by the plaintiffs, the alleged unnecessary nature of the cross‑motion, and the claim that the plaintiffs succeeded on grounds not advanced by their counsel.

The court rejected these arguments, finding no delay attributable to the plaintiffs and confirming that the cross‑motion seeking nunc pro tunc relief was appropriate.

The court held that the plaintiffs succeeded on their arguments regarding the court’s nunc pro tunc authority and the interpretation of the Court of Appeal’s Timminco decision.

Applying the general rule that costs follow the event, the court awarded the plaintiffs their claimed partial indemnity costs.

The appellant seller appealed a trial judgment awarding the respondent buyers $25,000 in damages for misrepresentation.

The seller had answered 'no' to a question about flooding on a Seller Property Information Statement, despite knowing of a severe water accumulation problem in the backyard.

The Divisional Court upheld the trial judge's findings that the misrepresentation was fraudulent or negligent, that the defect was latent, and that the 'entire agreement' clause did not exclude liability because the SPIS was incorporated into the agreement.

The appeal was dismissed.

In a family proceeding concerning custody and access to a cognitively impaired adult child, the court supervised the implementation of a prior trial judgment governing residence and access arrangements.

During the supervision process, court-appointed counsel for the child brought a motion seeking removal and replacement after the child retained different counsel and refused to continue working with existing counsel and a social worker.

The court considered the child’s wishes, the issuance of a legal aid certificate, and the ability of new counsel to fulfil the responsibilities required by the earlier judgment.

Finding it impractical for the existing representatives to continue in their roles, the court granted the motion and appointed replacement counsel.

Additional directions were provided to support the implementation of access and communication between the parents.

Following separation after an eight‑year marriage with three children, the applicant commenced proceedings after the respondent unilaterally reduced child and spousal support agreed to in minutes of settlement.

The principal issue at trial was the respondent’s income for support purposes, where evidence showed undeclared gratuities and reduced post‑separation employment.

The court found the respondent intentionally under‑employed and imputed income based on historical earnings and earning capacity.

Child support was recalculated based on imputed income, and spousal support continued at the amount agreed in the parties’ settlement.

The applicant’s claim for equalization of alleged missing cash kept in the matrimonial home was dismissed for insufficient proof.

The defendants moved for summary judgment to dismiss the plaintiffs' statutory claims for secondary market misrepresentation under the Securities Act, arguing the claims were statute-barred by the three-year limitation period in s. 138.14.

The plaintiffs had brought a motion for leave to assert the statutory claims within the limitation period, but the limitation period expired while the court's decision on the leave motion was under reserve.

The court held that it had inherent jurisdiction and authority under the Rules of Civil Procedure to grant the leave order nunc pro tunc (retroactively) to the date the leave motion was argued, applying the actus curiae maxim to prevent injustice caused by the court's delay.

The defendants' motion for summary judgment was dismissed, and the plaintiffs were permitted to amend their statement of claim effective the date the leave motion concluded.

The defendants sought leave to appeal a decision dismissing their motion to appoint a monitor over the plaintiff charity's financial affairs, as well as the associated costs award.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions under Rule 62.02(4)(a) and no good reason to doubt the correctness of the motion judge's decision under Rule 62.02(4)(b).

The court also found no error in principle in the motion judge's discretionary costs award.

Costs decision arising from a Rule 21 motion in a proposed class proceeding.

The plaintiffs sought partial indemnity costs after largely resisting the defendants’ motion to strike, while the defendants sought costs because the plaintiffs abandoned several claims during the motion, including conspiracy and negligence claims involving the Attorney General of Canada.

The court found that the plaintiffs substantially succeeded on remaining claims but materially altered their pleadings and abandoned significant allegations during the hearing.

Given the divided success and the altered nature of the action, the court concluded that neither side should receive costs.

In a class proceeding, the court determined costs arising from motions concerning the approval of the form, content, and timing of a certification notice and a motion by a class member to participate.

The participating class member was granted leave under s. 14 of the Class Proceedings Act to participate in the notice motion.

Although the plaintiffs succeeded on the timing of notice and the participating class member succeeded on participation, neither side was fully successful regarding the notice content, particularly concerning references to related U.S. proceedings.

The court held that class members who actively participate may be exposed to costs under s. 14(2), notwithstanding the protection for passive class members under s. 31.

However, given the novelty of issues concerning overlapping global class members and parallel U.S. proceedings, the court declined to award costs to any party.

The defendants brought a motion to strike the plaintiffs' proposed class action claims relating to the importation of vehicles from the United States into Canada.

The plaintiffs alleged that the defendants conspired to force importers to pay for unnecessary modifications and certifications by manipulating Transport Canada's admissibility list.

The court dismissed the motion to strike the Competition Act, Consumer Protection Act, and unjust enrichment claims.

The court struck the claim for unlawful purpose conspiracy without leave to amend, but allowed the unlawful conduct conspiracy claim to proceed.

The plaintiffs were granted leave to amend their claim for intentional interference with economic interests.

The applicant union sought judicial review of an arbitrator's decision regarding the effective date for retroactive salary adjustments for employees newly included in the bargaining unit.

The arbitrator had ruled that compensation would run from the date an employee was found or agreed to come within the unit, rather than the date of the initial grievance.

The Divisional Court dismissed the application, finding the arbitrator's remedial decision was reasonable given the complex, multi-year dispute involving multiple unions and hundreds of disputed positions.

The applicant, a postgraduate medical resident in Cardiac Surgery, sought judicial review of a university Senate Appeals Committee decision requiring her to enter a six-month remediation period before advancing to the next year of her program.

She argued the decision was unreasonable and that she was denied procedural fairness due to a reasonable apprehension of bias, an inability to cross-examine witnesses, and inadequate reasons.

The Divisional Court dismissed the application, finding the academic decision was reasonable and that the requirements of procedural fairness were met, noting courts should only interfere in university academic affairs in cases of manifest unfairness.

The plaintiffs in an Ontario securities class action moved for approval of the notice of certification.

The lead plaintiff in parallel U.S. proceedings, who was also a member of the Ontario global class, moved to participate in the motion, arguing that the notice should be delayed and should include detailed information about the U.S. proceedings.

The court granted the U.S. plaintiff standing to participate but held that the notice of certification should be issued promptly to protect class members' litigation autonomy.

The court determined that the notice should inform class members of the existence of the U.S. proceedings but should not include detailed or comparative information, as that would be confusing and unnecessary at this stage.

The applicant mother sought final orders regarding access and child support following separation and divorce.

The respondent father, who struggled with alcohol abuse and failed to attend trial, had exercised access inconsistently and frequently missed scheduled visits, causing instability for the child.

An investigation by the Office of the Children’s Lawyer recommended supervised access due to concerns about the respondent’s reliability and personal instability.

The court accepted those recommendations and ordered supervised access at a supervised access centre on alternate Sundays, with scheduled telephone contact.

The court also imputed income of $50,000 to the respondent for child support due to failure to provide disclosure and evidence that he was capable of earning that amount as a licensed electrician.

The accused was charged with one count of sexual assault following an incident at his apartment.

The complainant alleged that the accused forced intercourse and digitally penetrated her, while the accused denied any sexual contact, claiming he only physically struggled to remove her from his home.

The court assessed the credibility of both parties, applying the W.(D.) framework.

Relying on the complainant's credible testimony, corroborating physical evidence including damage to the apartment, and DNA evidence linking the accused to a condom found at the scene, the court found the accused guilty of sexual assault.

The applicant, Bot Construction Limited, sought judicial review of the Ministry of Transportation's decision to award a road construction contract to a competing bidder.

The applicant argued that the winning bid was non-compliant because it failed to declare imported steel, despite the project specifications requiring rolled steel beams that are unavailable in Canada.

The Divisional Court found that the Ministry's decision that the bid was compliant was unreasonable, as the bid could not meet the mandatory specifications using only Canadian steel.

The Court held that the Ministry breached its duty of fairness by privately accepting the winning bidder's proposal to substitute welded steel without notifying other bidders, and quashed the contract award.

The applicant sought judicial review of a decision by the Provincial Schools Admission Committee denying her admission to a provincial school for the deaf.

The applicant, who has a developmental brain malformation and severe language delays, communicates primarily using American Sign Language.

The Committee denied admission based on audiological reports showing normal peripheral hearing, concluding she did not have an auditory handicap.

The Divisional Court allowed the application for judicial review, finding the Committee breached procedural fairness by excluding relevant documents and hearing from a Ministry witness without the applicant's knowledge.

The Court also found the Committee failed to properly consider all medical evidence regarding the applicant's central auditory processing disorder.

The decision was set aside and remitted to a newly constituted committee.

The applicant applied for judicial review of the government's response to the recommendations of the Deputy Judges Remuneration Commission.

The Commission had recommended significant increases to the per diem rate for deputy judges.

The government accepted the initial increase for 2005 but rejected the subsequent annual increases, substituting lower increases based on economic conditions and public sector compensation trends.

The Divisional Court dismissed the application, finding that the government's response met the constitutional standard of rationality as it articulated legitimate reasons based on a reasonable factual foundation and respected the commission process.

The parents appealed a summary judgment order declaring their child a Crown ward without access.

They argued the motions judge erred by admitting past parenting capacity assessments and that the summary judgment rule in child protection cases violated section 7 of the Charter.

The Divisional Court dismissed the appeal, finding the assessments were expressly admissible under the Child and Family Services Act and declining to hear the Charter challenge as it was raised for the first time on appeal without an evidentiary foundation.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Director's Delegate had overturned a preliminary arbitration order that found the respondent insured's application for mediation was time-barred.

The Divisional Court held that the Director's Delegate was reasonable in concluding that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule did not begin to run until the insurer provided notice of refusal to pay following a negative Designated Assessment Centre report, rather than from the initial notice of stoppage of benefits.

The application for judicial review was dismissed.

The appellant appealed a Master's decision striking its statement of defence and counterclaim for failing to comply with a 'last chance' order requiring the fulfillment of undertakings and particulars of damages.

The Divisional Court allowed the appeal, finding that the Master misapprehended the evidence and the specific wording of the order, as the appellant had substantially complied by providing particulars, and the order did not require documentary evidence.

The Master's decision was set aside and costs were awarded to the appellant.