Allan D. McKitrick

The applicant First Nations sought judicial review of the Ministry's decisions to amend a Crown Land Use Policy Atlas and transfer a parcel of Crown land to the Municipality of Red Lake for housing development.

The applicants argued the Ministry breached its duty to consult under s. 35 of the Constitution Act, 1982, and failed to obtain their consent.

The Divisional Court dismissed the application, finding that Treaty No. 3 allows the Crown to take up land subject to a duty to consult, which does not amount to a First Nation veto.

The court held that the duty to consult was at the lower end of the spectrum and that the Ministry's consultation process was reasonable and fulfilled its constitutional obligations.

The appellant employer appealed an order dismissing its motion for summary judgment in a wrongful dismissal action.

The employee had been terminated for cause following two off-duty assaults.

The Divisional Court upheld the motions judge's finding that genuine issues for trial existed, including whether the employer had prior knowledge of one assault, whether the employee's developmental disability was known and accommodated, and whether mitigating factors were properly considered.

The appeal was dismissed.

Following the plaintiff's success on the defendant's motion for summary judgment and venue change in a wrongful dismissal action, the parties made written submissions on costs.

The plaintiff sought partial indemnity costs of $18,129.55, while the defendant proposed $12,000.

Applying the overriding principle of reasonableness, the court fixed the plaintiff's costs at $15,000 inclusive of HST and disbursements.

The appellants sought relief to stop the respondent from harassing and defaming the mayor, town council members, and staff through abusive emails and statements.

The application judge refused to grant any relief sought, including a declaration that the respondent's conduct breached the Town's harassment policies and a permanent injunction against defamatory statements.

On appeal, the court upheld the refusal to issue a broad injunction against defamatory speech absent a prior finding of defamation, but allowed the appeal in part by granting an injunction restraining the respondent from maintaining or purporting to maintain any town property without permission.

The court awarded costs to the appellants.

The defendant brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal and Human Rights Code claims, and alternatively, a motion to transfer the proceeding from Thunder Bay to Kenora.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly regarding the defendant's knowledge of the plaintiff's developmental limitations and the fairness of the termination investigation.

The court also dismissed the venue transfer motion, affirming the plaintiff's prima facie right to choose venue and finding the defendant did not demonstrate Kenora was significantly better than Thunder Bay.

The appellant's property was sold in a municipal tax sale, resulting in a surplus of over $76,000 which was paid into court.

The appellant missed the one-year statutory deadline to apply for payment out of court by three weeks, resulting in a deemed forfeiture of the funds to the municipality under s. 380(6) of the Municipal Act, 2001.

The application judge held he lacked jurisdiction to grant relief from forfeiture.

The Court of Appeal allowed the appeal, holding that s. 98 of the Courts of Justice Act provides jurisdiction to grant relief from the deemed forfeiture, as the statutory scheme does not expressly or implicitly preclude it.

The court granted relief from forfeiture and ordered the surplus paid to the appellant.

The appellant appealed the dismissal of his counterclaim for delay.

He had failed to deliver an affidavit of documents or prepare a discovery plan as required by a consent timetable order issued at a status hearing.

The appellant argued the motion judge should have applied Rule 24, which places the onus on the moving party to show inordinate and inexcusable delay.

The Court of Appeal upheld the motion judge's decision, finding no error in requiring the appellant to explain his delay under rule 48.14 and noting the court's power to dismiss a proceeding for failure to comply with an interlocutory order under rule 60.12.

The appellant appealed a decision finding its claim for recovery of repair costs for a deficient sewer system was statute-barred.

The Court of Appeal agreed that the essence of the claim was a breach of duty in 1986 requiring repairs in 2003, and found no basis to interfere with the lower court's decision.

The appeal was dismissed with costs awarded to the respondent.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's action regarding sewer system issues.

The plaintiff conceded its existing claims but sought to amend its statement of claim to add causes of action in negligence and negligent misrepresentation.

The court found that the plaintiff discovered the alleged negligence by late 2003 when it began constructing its own sewage lift station.

The court rejected the plaintiff's argument that the negligence was a continuing cause of action.

As the limitation period had expired, the proposed amendments were statute-barred, constituting non-compensable prejudice.

The motion to amend was denied and the action was dismissed.

The appellant municipality was successful on appeal and sought costs for the proceedings before the application judge and the Court of Appeal.

The Court of Appeal awarded costs to the appellant on a party and party basis.

Ontario was ordered to pay the costs of the application ($50,000), factum motion ($2,000), and appeal ($35,000).

Lac Seul First Nation and Northern Nishnawbe Education Council were ordered to pay the costs of the stay motion ($6,000).

No costs were awarded for or against Canada.

The appellant municipality appealed a declaration that it was responsible for maintaining two roads leading to a First Nation reserve and an education centre following a municipal restructuring order.

The application judge had found the roads became municipal highways through statutory dedication under the Municipal Act and common law dedication by conduct.

The Court of Appeal allowed the appeal, holding that the Municipal Act provisions relied upon explicitly excluded provincial roads under Crown control.

Furthermore, the common law doctrine of dedication and acceptance could not apply because the public already enjoyed a statutory right of passage under the Public Lands Act, and the province had failed to use the available statutory mechanisms to transfer the roads.

The appellants appealed an order dismissing their motion to set aside an order granted under s. 38(1) of the Bankruptcy and Insolvency Act, which authorized a creditor to pursue a fraudulent conveyance action in the trustee's stead.

The appellants argued the creditor lacked standing because it had settled its claims against the bankrupt.

The Court of Appeal held that the appellants had standing to challenge the s. 38 order due to allegations of abuse of process.

However, the Court found the creditor was a valid creditor at the date of bankruptcy and no binding settlement had been concluded with the bankrupt estate.

The appeal was allowed in part only to set aside a costs provision and stay the trustee's original motion, but otherwise dismissed.

The appellant tenant sought to renew a cottage lease with the respondent municipality.

The municipality argued the renewal clause was void for uncertainty regarding the duration of the term, and that it lacked the power to enter the renewal without Ontario Municipal Board approval.

The application judge found the renewal clause void for uncertainty.

The Court of Appeal reversed, holding that the duration of the renewal term could be ascertained from the lease's express terms.

The Court also held that the municipality was exercising its proprietary powers, not divesting legislative powers, and that OMB approval was not required because no costs were to be raised in a subsequent year.

The appellant sold a surplus grain terminal to a purchaser with an agreement intended to include a restrictive covenant preventing the property's use for grain handling.

The property was later sold in a tax sale to a new purchaser who intended to use it for grain handling.

The appellant sued for a declaration that the restrictive covenant ran with the land and sought rectification of the original agreement if the covenant was found defective.

The motion judge struck out the rectification claim as disclosing no reasonable cause of action and declared the covenant did not survive the tax sale.

The Court of Appeal allowed the appeal, finding that it was not plain and obvious that the rectification claim could not succeed, and set aside the declaratory orders.