Kevin Whitaker

A pharmaceutical company brought summary judgment motions against banks for conversion after an employee fraudulently issued corporate cheques payable to entities with names similar to legitimate customers and deposited them into accounts he controlled.

The banks asserted statutory defences under the Bills of Exchange Act, including the fictitious payee rule and the holder in due course provision, and advanced negligence-based counterclaims and equitable set-off.

The court held the payees were plausibly identifiable real entities and therefore not fictitious or non‑existent for the purposes of s. 20(5) of the Act.

It further found that s. 165(3) did not apply because the cheques were not delivered to authorized persons entitled to them.

The negligence-based counterclaims and related defences were barred by the strict liability regime governing cheque conversion.

The appellant tenant appealed a decision regarding a landlord and tenant dispute, raising an issue of estoppel based on a 2012 final order concerning the description of the premises.

The Divisional Court found the issue to be hypothetical and, applying the doctrine of mootness from Borowski, declined to exercise its discretion to hear the appeal.

The appeal was dismissed as moot with no order as to costs.

The appellant appealed a decision regarding a $90,000 rent deposit.

The Divisional Court upheld the application judge's finding that the deposit was voluntary and therefore not 'required' under section 106 of the Residential Tenancies Act, meaning there was no contravention of section 135.

However, the court allowed the appeal in part, finding that section 106(6) requires interest to be paid on the deposit, calculated on the monthly declining balance.

Prisoner passengers injured in a rear-end collision while being transported in a police prisoner transport vehicle sought punitive damages against the police service and related defendants after settling compensatory claims with other parties.

The plaintiffs alleged that the design of the transport vehicle—lacking seat belts, padding, visibility, and communication systems—demonstrated reckless disregard for prisoner safety.

The defendants argued the design reflected industry standards and balanced passenger safety with the need to prevent prisoner-on-prisoner and prisoner-on-officer violence.

The court held that punitive damages require malicious, high‑handed, or reprehensible conduct warranting denunciation.

Because the vehicle design reflected a rational policing approach supported by industry practice and reasonable debate over competing safety concerns, the conduct did not meet the threshold for punitive damages.

The applicants sponsored family members immigrating to Canada and signed undertakings to provide for their financial needs.

The sponsored family members received social assistance, resulting in debts owed by the applicants to the Province of Ontario.

The applicants sought judicial review of the Ministry's decisions to enforce the debts, arguing a breach of procedural fairness because the Ministry provided boilerplate responses and no proper reasons.

The Divisional Court dismissed the applications, applying the Supreme Court's decision in Mavi, which held that the duty of fairness in these debt collection matters is minimal and does not require reasons.

The court found the Ministry considered individual circumstances and complied with the required procedural fairness obligations.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying his claim for compensation following two assaults by another resident in his apartment building.

The Board denied the claim based on the appellant's credibility, reliability, reckless behaviour, and extensive criminal record, finding he had put himself in harm's way.

The Divisional Court dismissed the appeal, holding that the Board's consideration of the appellant's criminal record and behaviour under section 17(1) of the Compensation for Victims of Crime Act was reasonable.

The Municipal Property Assessment Corporation (MPAC) appealed a decision of the Assessment Review Board, arguing that the presiding member breached procedural fairness by conducting an independent investigation into property listings.

The Divisional Court found that while the member did conduct an independent investigation, he disclosed this fact to the parties during the hearing and they proceeded without objection.

The Court held that the parties waived the potential apprehension of bias and dismissed the appeal without costs.

The applicant corporation brought a motion to set aside a previous order and grant leave to be represented by a non-lawyer officer and director in a Small Claims Court appeal.

The court noted that the proposed representative was a full-time employee and officer of the corporation, had prepared all the materials, and the appeal involved less than $2,000.

Given the contextual analysis and new information, the court granted the motion.

The appellant appealed a Small Claims Court judgment awarding the respondent $5,850 in damages for breach of contract.

The appellant had unilaterally cancelled the respondent's booking of a cruise ship for a dance event.

On appeal, the appellant argued there was insufficient evidence to support the damages award.

The Divisional Court dismissed the appeal, finding that the trial judge committed no palpable and overriding error, as there was sufficient evidence of thrown-away expenses and lost profits.

The plaintiff advanced funds to a partnership operated by relatives pursuant to promissory notes and personal guarantees, including a $1,000,000 loan with an option to convert to equity.

The defendants asserted that the plaintiff elected to convert the loan to equity through a signed authorization, while the plaintiff alleged the document was forged.

The court found the authorization document to be a forgery and held that the plaintiff remained a lender entitled to repayment under the promissory note and guarantees.

The plaintiff also sued a bank for releasing funds from his account without authorization.

The court held that the plaintiff was bound by verification provisions in the bank’s Financial Services Agreement, which relieved the bank of liability due to the plaintiff’s failure to review and report account discrepancies.

Ontario corporations sought to discharge notices of unsecured interests registered on title to their Toronto properties by an individual who was engaged in family law litigation in California against the corporations’ owner.

The respondent sought a stay of the application, arguing forum non conveniens and requesting that the Ontario court decline jurisdiction in favour of the California proceedings.

The court held that by filing a Notice of Appearance the respondent had attorned to the jurisdiction of the Ontario court, rendering forum non conveniens inapplicable.

The respondent had not obtained recognition or enforcement of any foreign order and the corporate applicants were not parties to the foreign litigation.

The court dismissed the motion to stay and granted the application discharging the notices from title.

Following a proceeding in which the defendant was entirely successful, the court addressed the issue of costs.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court emphasized that cost awards should reflect the reasonable expectations of the parties and remain proportionate to the dispute.

Given the defendant’s complete success, the court determined that the defendant was entitled to recover costs.

Costs were fixed in a lump sum inclusive of taxes and disbursements.

The plaintiff corporation sued multiple defendants, including a lawyer who held sale proceeds in trust, alleging breach of trust and conversion arising from the sale of a motor vehicle.

The plaintiff argued the lawyer became a constructive trustee through knowing assistance or willful blindness when he released escrow funds on the direction of the plaintiff’s alleged agent.

The court found the plaintiff’s directing mind had authorized the agent to handle the sale and related arrangements, including the handling of proceeds through counsel.

There was no evidence the lawyer had actual knowledge, recklessness, or willful blindness to any wrongdoing, and the funds were handled in accordance with the agent’s instructions.

As a result, neither constructive trust nor conversion was established.

The plaintiff employer brought an action alleging breach of contract, breach of fiduciary duty, negligent misrepresentation, and intentional interference with economic relations against a former senior executive.

After the defendant’s statement of defence was struck and the defendant was noted in default, the matter proceeded as an uncontested trial where the plaintiff sought liquidated damages including repayment of salary and benefits, costs related to employees hired on the defendant’s recommendation, interest on a business loan obtained based on the defendant’s advice, and unpaid client invoices.

The court found the defendant had engaged in serious misconduct, including falsifying records and impersonating the company’s president, which could justify dismissal for cause.

However, the court held that an employer cannot recover all compensation paid to an employee merely because the employee’s performance was dishonest or deficient.

The plaintiff failed to establish entitlement to the claimed liquidated damages and the action for those damages was dismissed.

The applicant insurer appealed a loss transfer arbitration decision under s. 275 of the Insurance Act arising from a motor vehicle collision between vehicles insured by the parties.

The arbitrator found the applicant insurer’s insured 100% at fault under the Fault Determination Rules and ordered the loss transferred.

On judicial appeal, the court applied the reasonableness standard of review applicable to loss transfer arbitrations and emphasized the deference owed to specialized arbitrators interpreting their home statute and regulatory scheme.

The court held that the arbitrator reasonably applied Rule 14.2 and, alternatively, correctly determined fault under ordinary legal principles.

The arbitration decision fell within the range of acceptable outcomes and was upheld.

Costs decision following litigation between the applicant and multiple respondents in a commercial dispute.

The court considered the discretionary factors under Rule 57 of the Rules of Civil Procedure, including proportionality, complexity, and the reasonable expectations of the unsuccessful party.

Although the matter was not factually or legally complex, it was important to the litigants.

The court found that one respondent had been more successful than the applicant.

Costs were fixed at $30,000 inclusive of taxes and disbursements, payable partly immediately and partly upon the sale of property.

The applicant employer sought a labour injunction under section 102 of the Courts of Justice Act to restrain picketing by locked-out employees.

The court applied the four-part test for a labour injunction and found that the employer failed to demonstrate irreparable harm, as there were no criminal charges, civil actions, or disciplined employees, and the alleged loss of business was a bald assertion.

Furthermore, the court found that the police had been responsive and effective in maintaining the peace.

The application was dismissed.

The appellant registered a construction lien on a property owned by his estranged wife, which was subject to mortgages held by the respondents.

The respondent mortgagees successfully moved to discharge the lien under section 47 of the Construction Lien Act on the basis that it was registered in bad faith.

On appeal, the appellant argued the motion judge erred by not applying the summary judgment test under Rule 20.

The Divisional Court dismissed the appeal, holding that the motion judge properly exercised his broad discretion under section 47 and was not required to apply Rule 20 since the motion did not seek to dismiss the action.

The applicant sought an oppression remedy under s. 248 of the Ontario Business Corporations Act arising from a dispute between brothers who each owned 50% of a family produce business.

The applicant alleged the responding shareholder operated the company for the benefit of himself and his family, including alleged undisclosed cash transactions, misuse of company assets, and failure to provide financial disclosure.

The court held that the applicant failed to establish reasonable expectations necessary to ground an oppression claim.

The evidence did not demonstrate oppressive, unfairly prejudicial, or unfairly disregarding conduct within the meaning of the statute.

While the oppression remedy was dismissed, the court ordered the sale of the jointly owned property where the business operated under specified terms pursuant to the Partition Act.

The applicant employer sought judicial review of two Ontario Labour Relations Board decisions granting union certification in the construction industry.

The employer argued the Board erred by accepting a union membership card from an employee who worked on the application date but signed the card later that day after being laid off.

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

The Court found the Board's long-standing practice of not parsing the date of application into units of time of less than a day was consistent with the Labour Relations Act and its purposes.

The application for judicial review was dismissed.