David McCutcheon

This decision addresses costs following an application concerning a Co-Tenancy Agreement.

The Applicants sought declarations regarding 'Shared Property' and alleged bad faith by the Co-Tenancy Committee.

The court previously ruled against the Applicants on both issues.

The Respondents sought substantial indemnity costs, while the Applicants and Intervenor argued for reduced or no costs, citing an early offer to settle and proportionality.

The court fixed the Respondents' total costs at $145,000, apportioning $28,000 to the Intervenor and $117,000 to the Applicants, based on partial indemnity for the interpretation issue and substantial indemnity for the bad faith claim due to the Applicants' conduct.

The applicants, owners of a townhouse unit in a co-tenancy development, sought declarations regarding a Co-Tenancy Agreement, specifically whether a perimeter fence and retaining wall were 'Shared Property' and whether the Co-Tenancy Committee acted in bad faith.

The court found that the Co-Tenancy Agreement was ambiguous but, based on the factual matrix and subsequent conduct of the parties, the fence and retaining wall were intended to be Shared Property.

The court also dismissed the applicants' allegations of bad faith against the committee members, finding that the committee acted in good faith and consistently sought legal advice.

The defendant, Frank Jonkman and Sons Limited, brought a motion to withdraw deemed admissions resulting from its failure to respond to a Request to Admit served nearly two years prior.

At the time of service, the defendant was unrepresented and insolvent.

The defendant subsequently obtained insurance coverage and new counsel, who discovered the unresponded Request to Admit shortly before trial.

The court applied the three-part test under Rule 51.05 and granted leave to withdraw the admissions, finding that the change raised a triable issue, there was a reasonable explanation for the change in position, and the plaintiff would not suffer non-compensable prejudice.

The defendant was also granted leave to amend its pleadings.

The moving party defendant brought a motion to withdraw deemed admissions resulting from its failure to respond to a Request to Admit served nearly two years prior.

At the time of service, the defendant was unrepresented and insolvent, but subsequently obtained insurance coverage and new counsel.

The court applied the three-part test for withdrawing admissions and found that the withdrawal raised a triable issue, there was a reasonable explanation for the change in position, and the plaintiff would not suffer non-compensable prejudice.

The court granted the motion to withdraw the admissions and allowed the defendant to amend its pleadings, with no order as to costs.

The applicants sought judicial review of a decision by the Ontario Racing Commission, which upheld a private racetrack's decision to suspend the applicant owner's racing and stabling privileges following the death of a 13-year-old racehorse during training.

The Divisional Court dismissed the application, finding that the Commission had jurisdiction to determine whether the public interest warranted interfering with the racetrack's private property rights.

The Court held that the Commission's decision was procedurally fair and reasonable, as the evidence supported the finding that the applicant failed to take reasonable precautions regarding the horse's fitness.

The appellant, Bruno Schickedanz, appealed a decision by Woodbine Entertainment Group (WEG) to suspend his stabling and racing privileges after his 13-year-old horse, Wake at Noon, was euthanized following a breakdown during a workout.

The Ontario Racing Commission found that WEG acted appropriately in the public interest and to protect the health and welfare of horses.

The Commission held that WEG's exercise of its private property rights to exclude the appellant was reasonable and that no basis for ORC intervention was established.

The appeal was dismissed.

The Ontario Harness Horse Association (OHHA) requested a hearing regarding the actions of Woodbine Entertainment Group (WEG) and the Central Ontario Standardbred Association (COSA).

WEG brought a motion arguing that the Ontario Racing Commission lacked jurisdiction to hear the matter.

The Panel granted WEG's motion, finding that the Commission had no jurisdiction, and dismissed OHHA's application.

The appellant, a standardbred licensee, appealed a decision of the Ontario Racing Commission Judges denying his horse entries at Mohawk for failing to sign the Woodbine Entertainment Group's Application for Access Rights.

The Judges had ruled that he must comply with track rules to enter horses.

The Ontario Racing Commission panel dismissed the appeal, with reasons to follow.

The applicants, standardbred horse owners, appealed a decision by Woodbine Entertainment Group (WEG) to indefinitely deny their horses entry into races at WEG facilities.

The suspension followed a positive test for EPO in another horse trained by the same trainer, William Elliott.

The Ontario Racing Commission determined it had jurisdiction to hear the appeal and found that WEG's unilateral rejection of the entries lacked procedural fairness and was based on suspicion rather than evidence of wrongdoing by the applicants.

The Commission ordered that WEG is prohibited from rejecting the applicants' eligible horse entries on a permanent basis.

The applicant, a licensed exercise person, appealed a trespass notice issued by Woodbine Entertainment Group (WEG) that excluded him from its premises following a personal dispute on the backstretch.

The applicant sought to void the exclusion and claimed $25,000 in damages.

The Ontario Racing Commission determined it lacked jurisdiction to hear the matter, as the dispute did not primarily relate to racing or the good of horse racing generally, failing to meet the criteria established in the Sudbury Downs case.

The application was dismissed.

Standardbred licensee William Elliott appealed a decision by Woodbine Entertainment Group (WEG) to disallow his horses' entries into stakes races after he received a second TCO2 positive test.

He also appealed the judges' refusal to immediately transfer his horses to new owners.

The Ontario Racing Commission dismissed the appeal, finding that the judges' normal process for investigating trainer transfers should not be circumvented.

The Commission further held that WEG appropriately exercised its discretion under its rules to refuse the entries, and the Commission would not interfere in what was essentially a private contract dispute absent an overriding public interest.

The moving party, an owner of a horse that participated in the Maple Leaf Trot, brought a motion seeking an order to re-run the race or for compensation due to a starter error.

The starter had mistakenly flashed recall lights but let the race proceed, causing some drivers to take hold of their horses.

The Commission determined it had jurisdiction to order a re-run and to refund entry fees, but not to assess damages for lost purse opportunities.

However, the Commission declined to exercise its jurisdiction to hold a hearing for the requested relief, finding it contrary to the public interest and unfair to other participants who had already competed.

The appellant, a racing association official, appealed a $500 fine imposed by the Stewards for failing to comply with a Steward's direction.

The dispute arose when the appellant instructed his staff to pull the entry of a horse that was on the veterinarian's list and therefore ineligible to race, contrary to the Steward's instruction to leave the entry in until the Board of Stewards could rule on it.

The Panel found that the horse was clearly ineligible and the trainer agreed, meaning there was no dispute for the Board to resolve.

Given the appellant's blemish-free record and the circumstances, the appeal was allowed.

The applicant, a licensed standardbred trainer, applied for a hearing regarding a requirement imposed by Woodbine Entertainment Group (WEG) that his horses be placed in a retention barn prior to racing.

The Commission convened a panel to determine if it had jurisdiction to hold the requested hearing.

The Commission found that WEG's requirement arose from its own policies and private contracts, not from a delegated power under the Racing Commission Act, 2000, meaning there was no statutory entitlement to a hearing under s. 11(7).

While the Commission had discretion to hold a hearing under s. 7(k), it declined to do so, finding that the specific application of the retention policy to the applicant did not engage the public interest or involve the good of horse racing generally.

The applicant, a licensed standardbred trainer, sought to have the Ontario Racing Commission review and rescind a trespass notice issued by the respondent racetrack operator, which excluded him from racing at its facilities following an equine drug violation.

The Commission first determined it had jurisdiction to review the exercise of the racetrack's private property rights where the issue primarily involved horse racing and the public interest.

On the merits, the Commission found that the racetrack's decision to exclude the trainer was a reasonable exercise of its property rights aimed at protecting the integrity of its racing product and business interests.

The Commission declined to modify the trespass notice and dismissed the trainer's request for reinstatement.

The applicant requested a hearing after his nominations for several horse racing events were rejected by the Woodbine Entertainment Group for being postmarked after the deadline.

The applicant argued that the delay was due to a snowstorm and postal issues.

The Ontario Racing Commission found it had jurisdiction to hear the matter but declined to waive the breach of the postmark rule, emphasizing the need for objectivity and certainty in the nomination process.

The nominations were not accepted.

Following a decision of the Ontario Court of Appeal, the Ontario Racing Commission convened a hearing to consider applications by ten horsemen seeking orders to permit them to enter horses and access Sudbury Downs Raceway.

The applicants had previously been excluded by Sudbury Downs under the Trespass to Property Act following their participation in boycotts organized by the Ontario Harness Horse Association.

The Commission found that while some applicants had engaged in disruptive conduct in the past, the public interest favoured allowing them to return to racing.

The Commission ordered that two applicants be granted full access, while the remaining eight be granted access subject to specific time limitations and conditions regarding future conduct.

The appellant association appealed a Divisional Court decision dismissing its application for judicial review.

The respondent race track owner had excluded certain licensed members of the appellant from racing at its track, citing private property rights.

The Ontario Racing Commission declined jurisdiction to hold a hearing on the matter, believing it could not interfere with private property rights.

The Court of Appeal allowed the appeal, holding that the Commission's broad statutory powers to govern and regulate horse racing in the public interest necessarily included the power to make decisions that incidentally affect private property rights.

The Commission was directed to hold a hearing.