Philip B. Morrissey

The moving parties sought leave to appeal the order of Tranquilli J. dated January 14, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $7,857.16.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing the employment contract was frustrated by the plaintiff's total disability.

The plaintiff argued the defendant failed to accommodate his disability after he expressed a desire to return to work.

The court found a genuine issue for trial regarding whether the contract was frustrated or if the defendant breached its duty to accommodate under the Human Rights Code, noting the employer's failure to explore accommodation options.

The motion for summary judgment was dismissed.

The appellants appealed a Superior Court decision that quashed a building permit issued by the Chief Building Officer (CBO) for an accessory building on a lakeside residential property.

The property was a non-complying lot because it did not border a street, making the determination of lot lines and setbacks under the zoning by-law ambiguous.

The CBO reasonably interpreted the by-law to conclude that all lot lines were side lot lines, and issued the permit.

The Divisional Court allowed the appeal, finding that the appeals judge erred by applying a correctness standard of review and improperly considering land use planning principles from the Official Plan.

The CBO's decision was restored as it was reasonable and entitled to deference.

The applicants sought judicial review of a chief building official's decision to issue a building permit for a one storey accessory garage on an undersized beachfront lot lacking street frontage.

The court held the zoning bylaw was ambiguous because the lot did not face a street, making it impossible to determine the front and rear lot lines and applicable setbacks with certainty.

Applying a reasonableness standard and considering the official plan's waterfront aesthetics provisions, the court found the proposed structure was incompatible with the existing character of the area and should not have been permitted.

The decision issuing the permit was rescinded, with no order as to costs.

Following a motion in which the defendants were successful, the court considered competing submissions regarding costs.

The defendants sought full partial indemnity costs for the motion, while the plaintiff argued that the motion had been precipitated in part by defence counsel’s own error and requested that no costs be awarded or that the plaintiff receive costs despite losing the motion.

The court held that although the defendants were successful, their recovery should be reduced because the circumstances leading to the motion were partly attributable to defence counsel’s error.

The court rejected the plaintiff’s request for costs, finding that the summary judgment motion lacked merit.

Costs were therefore awarded to the defendants but reduced to align with the plaintiff’s counsel’s claimed fees plus full disbursements and applicable HST.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action, arguing that the defendants were deemed to have admitted numerous facts due to their late response to a lengthy Request to Admit under Rule 51.03 of the Rules of Civil Procedure.

The court found that the evidentiary record contained significant unresolved factual disputes, including the length of the plaintiff’s employment, whether the defendants were successor employers under s. 9(1) of the Employment Standards Act, and the calculation of damages and mitigation.

The court held that the delayed response to the Request to Admit did not justify enforcing deemed admissions where the requested admissions concerned contested or potentially incorrect facts and where no prejudice resulted from the delay.

Exercising its discretion under Rule 51.05, the court withdrew any deemed admissions and held that the matter must proceed to trial.