Jonathan de Vries

The moving party brought a motion for leave to appeal a decision of the Ontario Land Tribunal.

The Divisional Court dismissed the motion for leave to appeal and fixed costs at $5,000 all inclusive.

The appellant, Tek Holdings Limited, appealed an Order to Comply issued by the Chief Building Official requiring construction of a covered manure storage facility for a broiler chicken barn.

The appellant had initially obtained a building permit for an uncovered manure storage but was required to obtain a minor variance after a planning department error regarding Minimum Distance Separation (MDS) setbacks was discovered.

The Committee of Adjustment granted the variance on condition that the manure storage be covered.

The appellant subsequently constructed the facility with an uncovered manure storage, contrary to the revised permit.

The court dismissed the appeal, finding that the Order to Comply was reasonable and within the Chief Building Official's authority under the Building Code Act, 1992.

The defendant, the Municipality of Chatham-Kent, brought a motion for summary judgment to dismiss a negligence claim by the plaintiff, 1375175 Ontario Inc., on the basis that it was statute-barred.

The plaintiff alleged negligent issuance of an Order to Comply (OTC) and negligent maintenance of records related to the multi-tenant use of a commercial building.

The court found that the plaintiff had sufficient knowledge to discover the claim more than two years before the effective commencement date of the amended claim, thus the claim was statute-barred.

The motion for summary judgment was granted, and the action was dismissed.

This decision addresses a motion by the plaintiff to amend a claim, originally a proposed class proceeding arising from the Westboro bus crash, to continue as an individual action.

The City of Ottawa brought a cross-motion to refuse the amendment and declare four new individual actions statute-barred.

The core issue was whether the proposed individual claims constituted new causes of action or were supported by facts pleaded in the original statement of claim, thus protected by the limitation period suspension under the Class Proceedings Act.

The court found that the original pleading contained sufficient material facts to support claims of operator negligence and vicarious liability, in addition to direct and systemic negligence.

Consequently, these claims were protected from the running of the limitation period by s. 28 of the Class Proceedings Act.

The plaintiff's motion to amend was granted, and the individual claims were allowed to proceed.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The applicant, Carol Bellamy, a co-Estate Trustee, brought an application for the passing of accounts for the Estate of Jean Ann Ruston.

The respondent, Carolyn Thompson, the sole beneficiary and co-Trustee, raised numerous objections regarding excessive payments to Carol and her husband, Ron Bellamy, and mismanagement of estate funds, including speculative investments.

The court dismissed Carol's defenses of laches and acquiescence, finding her fiduciary duties to the sole beneficiary paramount.

The court ordered Carol to repay $318,918.27 to the Estate for excessive compensation and reimbursements, and directed several other objections to proceed to trial due to insufficient documentation and credibility issues.

The defendants, Chatham-Kent Children’s Services (CKCS), moved to compel the plaintiffs, Brian and Betty-Jo Kivell, to produce unredacted medical and counselling records and a further affidavit of documents.

The plaintiffs claimed the redacted portions were irrelevant, embarrassing, and subject to Wigmore privilege, relating to a private marital matter.

The court found the redacted information relevant to the plaintiffs' claimed psychological injuries and the defendants' causation defence.

The court rejected the privilege claim, finding insufficient evidence to satisfy the fourth Wigmore criterion (injury from disclosure outweighing benefit to litigation).

The motion was granted, ordering Mr. Kivell to produce the unredacted documents and a further affidavit of documents within 45 days, with a warning that failure to comply would result in dismissal of his claim.

The appellant, the Municipality of Chatham Kent, brought a motion for leave to appeal the order of Aston J. dated November 14, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $5,000.

The defendants, Municipality of North Middlesex and Vic Stellingwerff, brought a motion to stay the action as an abuse of process, alleging the plaintiffs failed to disclose a Pierringer agreement.

The plaintiffs brought a cross-motion to amend their Statement of Claim to explicitly limit their claim against the non-settling defendants to several liability.

The court dismissed the motion to stay, finding that the existence of the Pierringer agreement was disclosed promptly and did not significantly alter the litigation landscape.

The court granted the cross-motion to amend the Statement of Claim.

The plaintiff, Catherine Patrick, was injured in a single-car accident in February 2014.

She initially sued Southwest Middlesex, but later sought to add The Corporation of the County of Middlesex ("Middlesex County") as a defendant.

Middlesex County moved for summary judgment, arguing the plaintiff failed to provide timely statutory notice under s. 44(10) of the Municipal Act, 2001, and that her claim was statute-barred under the Limitations Act, 2002.

The court found that Patrick did not establish a "reasonable excuse" for the more than two-year delay in notifying Middlesex County, particularly for the initial 16-month period of inaction before retaining counsel.

As satisfying the "reasonable excuse" prong of s. 44(12) is mandatory, the court granted summary judgment, dismissing the action against Middlesex County.

The appellant borrowed the respondent's truck and, while impaired, caused a collision that destroyed it.

The respondent's insurer paid the property damage claim and brought a subrogated action against the appellant in Small Claims Court, arguing the appellant breached a gratuitous bailment agreement.

The trial judge allowed the claim, finding it fell within the exception in s. 263(5)(a.1) of the Insurance Act, which permits actions 'under an agreement'.

On appeal, the Divisional Court upheld the decision, confirming that a gratuitous bailment constitutes an 'agreement' for the purposes of the statutory exception, allowing the subrogated claim to proceed.

This decision resolves the issue of costs following an unsuccessful motion by some respondents (Kortes and Adeline) to stay an application challenging two wills.

The applicants (Gerritse and Teffer) successfully resisted the stay.

The court awarded costs to the applicants, fixed at $28,991.00, on a partial indemnity basis.

A blended costs award was ordered, with one-third ($9,663.66) to be paid by the unsuccessful moving parties (Kortes and Adeline) and two-thirds ($19,327.34) to be paid out of the Estate.

The court declined to address costs related to the appointment of an estate trustee during litigation, as that appointment was made on consent.

The moving party sought to set aside a registrar’s administrative dismissal of an insurance action arising from construction-related losses at a municipal water treatment plant, obtain an order to continue the action in its own name following an assignment, and secure a litigation timetable.

Applying the contextual four-factor framework governing relief from administrative dismissal, the court held that the delay before dismissal was adequately explained, the missed deadline was inadvertent, and the responding insurers failed to show prejudice tied to the delay, although the motion was not brought forthwith after the dismissal came to the original plaintiff’s attention.

The court also held that the assignee stood in the shoes of the assignor but nevertheless qualified as an interested person entitled to an order to continue under the Rules of Civil Procedure.

The dismissal order was set aside, the order to continue was granted, and a timetable was imposed, but the responding parties received costs because the relief amounted to an indulgence.

The court issued a corrigendum to correct and add the names of counsel for the plaintiffs and defendants in the original Reasons for Judgment issued on December 7, 2016.

All other contents of the original judgment remain unchanged.

The plaintiff sought leave to amend her statement of claim to add Middlesex County as a defendant in a motor vehicle accident claim involving alleged negligent road maintenance.

The motion was brought after the presumptive two-year limitation period had expired.

The plaintiff argued misnomer and discoverability.

The court rejected the misnomer argument because Middlesex County did not have notice of the claim within the limitation period.

However, the court granted leave to amend based on discoverability, finding that the plaintiff had presented sufficient evidence of due diligence to raise a triable issue as to whether the claim against the County was discoverable earlier.

The court also held that the plaintiff's alleged failure to provide timely statutory notice under the Municipal Act should be resolved on a full evidentiary record rather than at the pleadings stage.

The appellants, the City of Ottawa and a city bus driver, appealed a trial judgment finding them 20% liable for a fatal intersection collision.

The bus driver, travelling on a green light, collided with a vehicle that entered the intersection on a red light.

The trial judge found the bus driver negligent for speeding and momentary inattention, concluding the accident could have been avoided had he driven at the speed limit.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's articulation of the standard of care or her causation analysis.

The appeal regarding the trial judge's costs award was also dismissed.

The plaintiff was rendered a quadriplegic after the minivan he was a passenger in was struck by a vehicle driven by the defendant Ellis at an intersection.

Ellis had stopped at a stop sign rather than the faded stop line, resulting in poor sightlines, and pulled into the intersection when it was unsafe.

The court found the City of Hamilton 50% liable for failing to maintain the stop line, which created an unreasonable risk of harm.

Ellis was found 50% liable for failing to ensure it was safe to proceed.

Claims against the driver of the minivan were dismissed.

The appellant municipality appealed a trial judgment finding it liable under the Occupiers' Liability Act for catastrophic injuries sustained by the respondent at a municipal mountain bike park.

The respondent fell from a wooden obstacle and was rendered quadriplegic.

The trial judge found the municipality breached its duty of care by failing to post proper warning signs, negligently promoting the park, failing to monitor risks, and failing to provide an adequate progression of qualifiers.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's application of the duty of care, standard of care, causation, or assessment of contributory negligence.

The defendants, a treating psychologist and a children's aid society, brought motions under Rule 21 to strike the plaintiffs' statement of claim.

The plaintiffs' action arose from a child protection investigation and criminal charges based on allegations of abuse made by a child previously adopted by the plaintiffs.

The court struck the claim against the psychologist without leave to amend, finding she owed no duty of care to the parents of her patient and was statutorily obligated to report suspected abuse.

The court also struck the adult plaintiffs' claims in negligence and various intentional torts against the children's aid society defendants, finding no duty of care was owed to the parents during a child protection investigation.

Leave to amend was granted for claims of misfeasance in public office and Charter damages.

The respondent, a 16-year-old driver, drove through a stop sign at 80 km/h on an unfamiliar rural road, lost control on a curve, and crashed into a concrete bridge.

He sued the municipality for non-repair, arguing it should have posted a warning sign for the curve.

The trial judge found the municipality 50% liable, holding that ordinary rural drivers do not always stop at stop signs and the curve was a hidden hazard.

The Court of Appeal allowed the municipality's appeal and dismissed the action, holding that a municipality's statutory duty of repair is limited to ensuring roads are safe for ordinary drivers exercising reasonable care.

The municipality has no duty to keep roads safe for negligent drivers who ignore stop signs.