Clifford Cole

The Professional Conduct Committee of the CPAO sought judicial review of an internal Appeal Decision that ordered the readmission of a former accountant whose license was revoked following criminal convictions for fraud.

The Divisional Court allowed the application, finding that the Appeal Panel failed to conduct a proper reasonableness review of the initial Reconsideration Decision.

Instead of deferring to the Reconsideration Panel's assessment of the applicant's remorse and rehabilitation, the Appeal Panel impermissibly reweighed the evidence.

Furthermore, the Appeal Panel failed to consider whether readmission was consistent with maintaining public trust in the profession.

The Appeal Decision was set aside and the Reconsideration Decision denying readmission was restored.

The succeeding estate trustees moved under Rule 59.06 to vary prior costs awards made after dismissal of their contempt motion regarding document production under an estate judgment.

They argued accidental slip, omission, and newly discovered facts, including post-endorsement waiver of privilege over lawyer file materials.

The court held Rule 59.06 is exceptional, does not permit a re-argument or review of judicial reasoning, and found no error in expressing the court’s manifest intention.

The court also found no new fact justifying variation and dismissed the motion.

The moving parties brought a motion for leave to appeal the decision of Penny J. dated March 24, 2025.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

This decision concerns cross-motions for production in a complex commercial dispute involving Paragon Protection Ltd., Tamstu-Harjon Holdings of Canada Limited, and related parties.

The central issue was the scope of privilege over various documents, including those arising from related estate litigation and legal advice received over several decades.

The court clarified the law on waiver of privilege, settlement privilege, and the production of documents, granting and denying relief in part to both sides.

The moving parties brought a motion for leave to appeal the order of Wilson J. dated August 24, 2023.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

The plaintiffs/appellants brought a motion for leave to appeal the order of Gorman J. dated June 6, 2022.

The Divisional Court allowed the motion for leave to appeal.

Costs of the motion were fixed at $5,000 and reserved to the panel hearing the appeal.

The appellant appealed an Associate Justice's order dismissing a motion to correct the plaintiff's name in the title of proceedings based on misnomer.

The Associate Justice found that the defendants would not have reasonably understood that the proposed new plaintiff was the intended plaintiff, as the defendants had expressly refused to contract with that entity.

The Divisional Court found no palpable and overriding error in the Associate Justice's factual findings or application of the objective test for misnomer.

The appeal was dismissed.

The Ontario Court of Appeal allowed an appeal concerning the enforcement of a Letter of Request (LoR) from a U.S. court.

The LoR sought confidential financial and valuation documents from Matvil Corp., a non-party, to assist Actava TV, Inc.'s damages expert in a U.S. action using a "yardstick" method.

The Court found that the application judge erred in her relevance and public policy analyses, and failed to adequately consider Canadian sovereignty.

The requested information was deemed overly broad, speculative, and not directly relevant to the material issues in the U.S. action, and its disclosure would be contrary to Canadian public policy given the sensitive nature of the data and the inadequacy of protective orders.

The plaintiff brought a motion under Rule 5.04(2) to amend the title of proceedings to correct an alleged misnomer, seeking to substitute 'Downtown Auto Collision Centre Inc.' for the named plaintiff 'Dealer’s Choice Preferred Collision Centre Inc.'.

The action alleged breach of a 2013 agreement.

The court found that the defendants had specifically rejected the inclusion of Downtown Auto as a party to the agreement during negotiations.

Applying the 'litigating finger' test, the court concluded the defendants would have had no reason to think the intended plaintiff was Downtown Auto.

The motion was dismissed with costs awarded to the defendants.

The appellants appealed a decision of the Environmental Review Tribunal upholding a Director's order under s. 18 of the Environmental Protection Act.

The order required the appellants, as owners or former owners/occupiers of a contaminated source property, to delineate contamination that had migrated to off-site properties.

The appellants argued s. 18 was limited to future events and on-site remediation, contrasting it with the fault-based s. 17.

The Divisional Court dismissed the appeal, finding the Tribunal's broad interpretation of s. 18—that it permits off-site orders and applies to existing, ongoing, and future adverse effects—was reasonable and consistent with the modern principles of statutory interpretation.

Following a successful appeal of an arbitration award, the appellants sought costs for the appeal and two preliminary motions.

The respondents argued success was divided and disputed the scale and quantum.

The court found the appellants were entirely successful and entitled to costs for the appeal and the preliminary motions, which were necessitated by the respondents' ill-advised motion to quash.

The court declined to award substantial indemnity costs, finding no reprehensible conduct, and fixed costs on a partial indemnity scale at $54,284.74.

The appellants appealed an arbitration award under s. 45 of the Arbitration Act, 1991, arguing the arbitrator exceeded his jurisdiction by directing the boards of two corporate parties to determine the profits of a non-party US corporation.

The Superior Court of Justice agreed, finding that an arbitrator cannot bind or govern the affairs of a non-party.

The appeal was allowed in part, and the specific paragraph of the formal judgment affecting the non-party was set aside and remitted to the arbitrator with directions.

The appellant landlord appealed a motion judge's decision finding that the parties had agreed to reinstate a commercial lease and that the landlord fundamentally breached that agreement by insisting on additional terms before allowing the tenant to re-enter the premises.

The Court of Appeal upheld the motion judge's findings of fact, which were supported by the evidence.

The court found that the tenant had matched the landlord's terms for reinstatement and that the landlord's subsequent demand for additional payments constituted a fundamental breach of the reinstatement agreement.

The appellants appealed an order issued by the Director of the Ministry of the Environment and Climate Change requiring them to delineate off-site contamination.

After an unsuccessful jurisdictional motion, the appellants withdrew their remaining grounds of appeal on the basis that the order's requirements had been or would be substantially complied with.

The Director consented to the withdrawal.

The Environmental Review Tribunal dismissed the appeals pursuant to Rule 199 of its Rules of Practice.

The appellant, a minority shareholder, appealed a summary judgment decision dismissing part of his oppression remedy claim as statute-barred.

The motions judge found the appellant was aware of the constituent elements of his claim regarding a corporate dilution transaction more than three years before commencing the action.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion on discoverability, noting that a fresh and discrete act of oppression did not occur to extend the limitation period.

The province issued a renewable energy approval to the respondent for a wind turbine project, which included the use of an unopened municipal road allowance.

The appellant city, opposing the project, passed a resolution refusing any request to use the road.

The Divisional Court quashed the resolution, finding it frustrated the legislative purpose of the provincial approval and was made in bad faith.

The Court of Appeal dismissed the city's appeal, confirming that the renewable energy approval was a positive entitlement and the city's resolution conflicted with it under section 14 of the Municipal Act, 2001.

The Court also upheld the finding of bad faith.

Following a successful motion, the plaintiff sought costs on a substantial indemnity basis or, alternatively, on a partial indemnity basis.

The self-represented defendant did not provide costs submissions.

The court awarded costs to the plaintiff on a partial indemnity basis, fixing the amount at $2,500.00, payable within 60 days.

The applicant obtained a Renewable Energy Approval (REA) to construct industrial wind turbines.

The respondent municipality, an 'unwilling host' to wind projects, passed a resolution refusing the applicant access to a municipal road necessary for the project.

The applicant sought judicial review.

The Divisional Court quashed the resolution, finding that it frustrated the purpose of the provincially-issued REA and was passed in bad faith for the improper purpose of stopping the project rather than legitimately regulating roadways.

The municipality was ordered to consider the applicant's road use and permit applications in good faith.

The appellants appealed the dismissal of their claim for damages arising from the expropriation of their lands by the respondent municipalities and the subsequent transfer of those lands to Toyota for an auto plant development.

The appellants argued the transfer to Toyota at the expropriation price constituted an illegal bonus under s. 106 of the Municipal Act, which should invalidate the expropriation and entitle them to damages reflecting the lands' increased value.

The Court of Appeal dismissed the appeal, holding that the expropriation and sale were separate transactions, and even if s. 106 was breached, it would not invalidate the expropriation or confer a right to damages beyond the fair value provided under the Expropriations Act.

The respondent, a former CEO and director of the appellant corporation, was removed from his position by shareholders.

He filed a claim for enhanced severance, a bonus, and a share appreciation rights (SAR) cancellation award under his management services agreement.

The trial judge found that the respondent breached his fiduciary duties by establishing the bonus and SAR cancellation awards for his own benefit, but still awarded him the enhanced severance, finding the breach did not constitute a default under the agreement.

The Court of Appeal allowed the corporation's appeal, holding that the trial judge's interpretation of the agreement ignored s. 134(3) of the Business Corporations Act and led to a commercially absurd result.

The respondent's breach of fiduciary duty constituted a default disentitling him to the enhanced severance.