Ian McKellar

The applicants sought judicial review of a decision by the Registrar under the Funeral, Burial and Cremation Services Act, 2002, which refused to fully reimburse their costs for a burial site investigation.

Human remains were discovered on the applicants' property during a Stage 4 archaeological assessment, prompting the Registrar to order a burial site investigation.

The Registrar later found the investigation caused an undue financial burden and agreed to reimburse costs, but limited the reimbursement to a fraction of the claimed amount, attributing the rest to the Stage 4 assessment.

The Divisional Court found the Registrar's decision unreasonable, as it disregarded prior directions that expanded the scope of the burial site investigation and relied on a faulty tool-based analysis to differentiate the work.

The decision was quashed and remitted for reconsideration.

The moving party sought leave to appeal the decision of Penman J. dated May 16, 2025.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The applicants brought a motion to strike an affidavit filed by the Registrar in an application for judicial review of a decision refusing reimbursement for burial site investigation costs.

The court held a case conference and summarily struck the affidavit, finding it was inadmissible as it went beyond providing general background and improperly sought to supplement the decision-maker's reasons with post-decision commentary and factual assertions.

The appellant contested the denial of statutory accident benefits following a 2010 automobile accident, bringing simultaneous proceedings before the Divisional Court by way of statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law.

The courts below held that, where there is a limited statutory right of appeal, judicial review should only be exercised in exceptional or rare cases.

The Supreme Court of Canada held this was an error: a circumscribed statutory right of appeal on questions of law does not restrict the availability of judicial review on questions of fact or mixed fact and law, and the Strickland framework does not support imposing a heightened threshold for judicial review in such circumstances.

The Court further found that the LAT adjudicator's reconsideration decision was unreasonable because he failed to consider the effect of the reinstatement of income replacement benefits on the validity of the initial denial and failed to have regard to relevant tribunal jurisprudence on the point.

The appeal was allowed and the matter remitted to the LAT adjudicator for reconsideration.

The defendants brought a motion for summary judgment to dismiss an action concerning the interpretation of a centralized health and benefits trust deed.

The plaintiffs, a local union and three of its members, sought an order that the trust wrongly denied them an annual open enrollment window for benefits, which they argued was guaranteed by their prior local collective bargaining agreement and incorporated into the centralized trust.

The court found that the trust deed, read in its grammatical sense and as a whole, and consonant with the purpose of the collective bargaining regime, did not require the continuation of the annual open enrollment window.

The court emphasized the trustees' duty of prudence in adopting industry standards to minimize "anti-selection" risk.

The motion for summary judgment was granted, dismissing the plaintiffs' claim.

The defendants brought motions seeking to remove the plaintiffs' counsel, Julian Falconer and Falconers LLP, and for the production of portions of their file concerning advice given to plaintiff Bradley Blair regarding a complaint to the Ombudsman and a related judicial review application.

The defendants argued that counsel was a potential witness, an "unsworn witness" or had a conflict of interest based on a duty of loyalty, and that solicitor-client privilege had been waived.

The court dismissed both motions, finding no deemed waiver of privilege, no likelihood of counsel being a material witness, no "unsworn witness" concern given the nature of prior interactions, and no duty of loyalty conflict.

The appellants, former truck drivers for the corporate respondent, initiated a public campaign alleging unpaid wages while their Canada Labour Code complaints were ongoing.

The respondents sued for defamation, trespass, and other torts.

The appellants moved to dismiss the action under the anti-SLAPP provisions of the Courts of Justice Act.

The motion judge dismissed the motion.

On appeal, the Court of Appeal found the motion judge erred in his s. 137.1(3) analysis by focusing on motive rather than the expression's subject matter, but ultimately upheld the dismissal under s. 137.1(4), finding the respondents' claims had substantial merit, the appellants had no valid defence, and the harm to the respondents outweighed the public interest in protecting the expression.

The applicant school board applied for judicial review of a labour arbitration award that upheld two grievances filed by the union on behalf of an employee with mental health disabilities.

The arbitrator had found that the employee was entitled to a sick leave refresh and that his return to work plan should have been accommodated through remote work.

Applying the Vavilov reasonableness standard, the Divisional Court found that the arbitrator's interpretations of the collective agreement and conclusions regarding medical evidence were internally coherent, justified, and reasonable.

The application for judicial review was dismissed.

Following the dismissal of the respondent's motion to set aside an undefended trial decision and the granting of the Law Society's request to transfer an action, the court determined costs.

The court rejected the respondent's argument that costs could not be awarded without formal motion records.

The court declined to award costs personally against the respondent's counsel to avoid further delay.

However, the court awarded substantial indemnity costs against the respondent, finding his conduct constituted an abuse of process designed to complicate and delay the proceedings.

Costs were fixed at $3,987.77 for the Law Society and $12,500.00 for the applicant.

The plaintiff in a solicitor's negligence action brought a motion for leave to amend her statement of claim to add allegations of litigation misconduct against the defendants' counsel.

The proposed amendments related to the removal of labels from boxes containing the plaintiff's files before they were delivered.

The court dismissed the motion, finding that the proposed amendments did not arise from the same factual matrix as the original claim and did not disclose a legally tenable cause of action for litigation misconduct.

The court also noted the motion appeared to be brought primarily for tactical reasons to bolster a separate motion to remove the defendants' counsel.

The appellant sought judicial review and appealed a decision of the Licence Appeal Tribunal (LAT) which found her accident benefits claim statute-barred.

The Divisional Court dismissed both, stating judicial review was only available in "exceptional circumstances" given the statutory appeal right.

The Court of Appeal dismissed the further appeal, clarifying that while judicial review is always available, it is a discretionary remedy and will only be exercised in rare cases where alternative remedies (like reconsideration and statutory appeal) are inadequate.

The Court affirmed the LAT's finding on the limitation period as reasonable and provided guidance on handling concurrent appeal and judicial review proceedings.

The moving party brought a motion for leave to appeal the order of Myers J. dated March 2, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $1,095.99.

The plaintiff brought a motion for leave to amend her Amended Statement of Claim in a solicitor's negligence action, seeking to add allegations of litigation misconduct by the defendants' counsel.

The proposed amendments related to the handling and delivery of client files.

The court found the motion premature due to its overlap with a "Label Motion" and ongoing judicial case management concerning the same alleged misconduct.

The court adjourned the pleadings motion to a case conference to clarify the status of the related motions and case management, reserving costs.

The defendants, former truck drivers, brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a lawsuit by the plaintiff trucking company for defamation, trespass, and other torts.

The lawsuit arose from protests and online comments alleging unpaid wages.

The court dismissed the defendants' motion, finding that their expressions, which included calling the plaintiffs "thieves" and disrupting business, were primarily a private collection dispute aimed at circumventing ongoing legal processes (Canada Labour Code complaints), rather than a matter of genuine public interest.

The appellants appealed an Associate Judge's decision dismissing their motion to strike the respondents' statement of claim for lack of particularity or dismiss it for delay, and granting the respondents' motions to extend time for service and compel answers to undertakings.

The underlying action involved allegations of fraudulent conveyances following a $2.3 million judgment against the corporate defendant.

The Superior Court dismissed the appeal, finding no error of law or palpable and overriding error in the Associate Judge's application of the test for delay or the principles for striking pleadings.

The court declined to consider the appeal regarding the undertakings motion because the corporate defendant was not an appellant and was unrepresented.

The moving party brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $3,148.63.

The appellant sought to enforce letters of request from a Florida court to obtain documents from the former Ontario lawyers of his ex-wife and daughter for use in a Florida action for parental alienation.

The application judge dismissed the application on public policy grounds, finding it would interfere with solicitor-client privilege and client confidentiality.

The Court of Appeal dismissed the appeal, holding that the hearing was procedurally fair and the application judge properly exercised his discretion in refusing to enforce the letters of request because they sought presumptively privileged documents.

The applicant father sought to enforce Letters Rogatory and a subpoena issued by a Florida court against several Ontario lawyers who had represented his ex-wife and daughter in previous family law proceedings.

The Florida action sought damages for interference with parental rights.

The Superior Court of Justice dismissed the application on public policy grounds, holding that the underlying cause of action is forbidden in Canada and that enforcing the subpoena would violate solicitor-client privilege and confidentiality.

The defendants, a criminal defence lawyer and his firm, brought a motion to strike the self-represented plaintiff's statement of claim.

The plaintiff had previously filed complaints against the defendants with the Human Rights Tribunal of Ontario and the Law Society of Ontario after the lawyer removed himself from the record in the plaintiff's criminal proceedings.

The court found the action was not an abuse of process or vexatious, as the administrative complaints were not decided on their merits.

However, the court struck the statement of claim in its entirety under Rule 25.11, finding it contained irrelevant, inflammatory allegations and failed to plead necessary legal elements.

The plaintiff was granted leave to amend.

The plaintiffs sought to vary the terms of a formal order resulting from a previous endorsement, specifically regarding the restriction of an amended statement of claim to 'the Estate’s claim of negligent legal advice from the Defendant.' The court clarified that such a request constituted a motion to vary the endorsement, not merely an appointment to settle the order under Rule 59.04(12).

The court held the Registrar-signed order in abeyance and granted the plaintiffs 30 days to serve a formal Notice of Motion to vary the endorsement.