Ian N. McLean

The plaintiff moved for leave to deliver and file a Fresh as Amended Statement of Claim to add the Ottawa Police Services Board as a defendant and expand on allegations against the RCMP.

The defendants opposed the amendment and alternatively moved to strike portions of it for disclosing no reasonable cause of action.

The court granted leave to amend the claim, finding no non-compensable prejudice to the defendants.

However, the court struck several paragraphs of the proposed amended claim, including a statute-barred claim against the police board and Charter claims unsupported by pleaded facts, while allowing claims for negligent investigation and harassment to proceed.

The applicant brought an application for judicial review regarding his employment with the Ontario Provincial Police.

The Divisional Court dismissed the application as an abuse of process, finding that the applicant was attempting to resurrect claims that had been fully resolved by a prior Memorandum of Settlement.

The settlement included a comprehensive release and a complete bar to any further proceedings, including judicial review.

Following a substantive decision under the Substitute Decisions Act, 1992 appointing family members as guardians of an incapable adult, the court determined costs arising from competing guardianship applications.

The successful parties sought elevated costs due to the applicant’s conduct in initiating and pursuing the litigation.

The court held that costs in SDA proceedings follow the general civil litigation principles under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

Finding the applicant’s conduct precipitous, belligerent, and motivated by collateral dissatisfaction with estate arrangements rather than concern for the incapable person’s welfare, the court ordered costs on a substantial indemnity basis.

Fixed costs were awarded to the successful parties, payable by the unsuccessful applicant.

The applicant brother brought an application to be appointed as the sole guardian of property and personal care for his sister, who has significant cognitive and developmental limitations.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

After reviewing the history of care and the conduct of the parties, the court dismissed the applicant's application and appointed the mother and sister as joint guardians, finding it was in the incapable person's best interests to remain in the care of her mother with a transition plan to her sister.

The applicant brother brought an application to be appointed the sole guardian of property and personal care for his developmentally disabled sister.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

Applying the best interests test under the Substitute Decisions Act, the court dismissed the brother's application, finding he acted in bad faith and was motivated by financial interests.

The court appointed the mother and sister as joint guardians, noting the mother's lifelong devotion to the incapable person's care.

The appellants, previously declared vexatious litigants, appealed the assessment of costs ordered following the dismissal of their application for leave to commence an action under the Road Access Act.

They failed to attend the assessment and had not filed objections under Rule 58.10 of the Rules of Civil Procedure before appealing.

The court held that although the appellants had not followed the proper procedure and had filed an inadequate record, the notice of appeal was filed within the seven-day period and the certificate of assessment had been issued immediately, preventing the objection process contemplated by the Rules.

Relying on Rule 2.01, the court dispensed with strict compliance with the Rules to permit the appellants an opportunity to participate in a new assessment.

The matter was remitted to the assessment officer to schedule a new assessment of costs.

Following the defendant’s successful summary judgment motion in a commercial dispute, the court determined the appropriate costs award.

The successful party sought more than $164,000 in costs relying on a prior offer to settle, or alternatively $141,852.34 on a partial indemnity basis.

The court considered Rule 57.02 factors including the amount claimed, complexity of the proceedings, the plaintiff’s conduct in prolonging the litigation, and the requirement that costs be fair and reasonable.

Although the plaintiff’s conduct contributed to delay and the defendant’s offer to settle was relevant, the court found the hours claimed excessive and reduced the award.

Costs were fixed globally at $100,000 inclusive of HST and disbursements.

The defendant brought a motion for summary judgment dismissing the plaintiff’s claim for damages arising from the termination of a propane supply relationship and seeking judgment on a counterclaim for unpaid invoices.

The dispute centered on whether negotiations following the expiry of earlier agreements resulted in a binding contract and whether promissory estoppel or bad faith negotiations could support the plaintiff’s claim.

The court held that the plaintiff’s December 6, 2001 letter constituted a counter-offer that rejected the defendant’s earlier proposal, eliminating any ability to later accept it.

The court further found no evidence establishing promissory estoppel or any pleaded claim based on a duty of good faith in negotiations.

Summary judgment was appropriate in this document-driven case, the plaintiff’s claim was dismissed, and judgment was granted to the defendant on its counterclaim for unpaid gas supplied.

The appellant appealed his conviction, arguing the trial judge misapprehended his evidence and misapplied the W.(D.) framework.

The Court of Appeal found the trial judge erred by misapprehending the appellant's testimony regarding whether intercourse occurred and by requiring the appellant's evidence to establish a finding of fact rather than merely raising a reasonable doubt.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed his conviction for sexual assault, arguing that the Crown's closing remarks to the jury resulted in an unfair trial.

The appellant contended that the Crown inappropriately invited the jury to put themselves in the position of a victim, commented on the complainant's demeanour, and offered unproven facts regarding the complainant's mother's feelings of guilt.

The Court of Appeal found that while some of the Crown's comments were inappropriate and best left unsaid, the trial judge's balanced and fair charge to the jury was sufficient to ensure a fair trial.

The appeal was dismissed.

The applicant filed a human rights application alleging discrimination in employment on the basis of family status, arguing that the employer's requirement to relocate to Wawa failed to accommodate his son's special needs.

The respondents requested early dismissal.

The Tribunal found that while the Grievance Settlement Board (GSB) had not dealt with the human rights complaint under section 45.1 of the Code, it was an abuse of process for the applicant to challenge the reasonableness of the relocation requirement before the GSB without raising his human rights complaint, only to later pursue it before the Tribunal.

The application was dismissed as an abuse of process and for being filed outside the one-year limitation period.

The appellants appealed a summary judgment order dismissing their action against the respondents, who had built the house in question.

The Court of Appeal found that while the motion judge misstated the test under the new summary judgment rule, the critical error was finding no evidence to establish knowledge or causation.

The Court concluded there was sufficient evidence for a trial judge to find knowledge and causation, particularly because the respondents built the house.

The appeal was allowed and the matter remitted for trial.

The applicant sought judicial review of the respondent college's decision to involuntarily withdraw her from its nursing program for breaching an Academic Behaviour Contract.

The applicant argued she was denied procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the applicant was afforded procedural fairness, as she was advised of the allegations and given the opportunity to respond before both the Academic Administrator and the Vice President (Academic).

The appellant appealed an order finding her in contempt of court for engaging in the unauthorized practice of law contrary to a previous court order and section 50 of the Law Society Act.

The Court of Appeal dismissed the appeal, finding no merit in the appellant's arguments and agreeing with the motion judge's conclusion that the appellant's conduct and prepared documents transgressed both the court order and the governing statute.

The court directed that the penalty phase proceed before the motion judge and awarded costs to the respondent.

The appellants appealed a trial judgment declaring the respondent the owner of a parcel of land and ordering its conveyance.

The trial judge found that the appellants promised to convey the land to the respondent in exchange for road construction work.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's factual findings.

The Court also held that the agreement was not frustrated by municipal conditions and that written municipal applications signed by the appellant satisfied the requirements of section 4 of the Statute of Frauds.

The appellant police officer appealed his convictions for major and minor insubordination.

The major charge related to transporting a prisoner and a complainant in the rear of a police cruiser without a screen, contrary to administrative procedure.

The minor charge related to eating a pear while in uniform in a public place.

The Ontario Civilian Police Commission allowed the appeal on both charges.

The Commission found the transportation procedure was unclear for the specific circumstances, making the officer's conduct reasonable.

Regarding the minor charge, while the strict regulation against eating in uniform remained valid, the Commission allowed the appeal because the regulation was outdated, modified by practice, and an improper penalty of a reprimand had been imposed.