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The decision issuing the permit was rescinded, with no order as to costs.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

The applicant, a long-term employee, alleged age discrimination after her employer repeatedly asked her to identify a retirement date and later refused to defer that date.

The Human Rights Tribunal of Ontario found that the employer's requests for a retirement date were discriminatory, as they were motivated by performance concerns that would have been addressed differently for a younger employee.

However, the Tribunal found that the employer's refusal to defer the retirement date was not discriminatory, as it was based on having already hired a replacement.

The applicant was awarded $3,000 for injury to dignity, but her claim for lost wages was dismissed because she voluntarily chose the retirement date and failed to mitigate her damages by seeking alternative employment.

The appellant insurer sought an order for expenses following a successful appeal that revoked an arbitrator's decision allowing the respondent to proceed to arbitration for statutory accident benefits.

The parties agreed the insurer was entitled to its expenses for both the arbitration and the appeal.

The Director's Delegate assessed the claimed arbitration expenses, reducing the hours claimed for two of the insurer's counsel due to duplication and disproportionate billing.

The respondent was ordered to pay the appellant's arbitration expenses fixed at $15,917.23 and appeal expenses fixed at $5,731.16.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer brought a motion arguing that the applicant was precluded from proceeding to arbitration by res judicata or issue estoppel due to a previous arbitration and appeal proceeding.

The arbitrator held that the Supreme Court of Canada's decision in Smith v. Co-operators substantially changed the law regarding the termination of accident benefits, creating a 'new law' exception to res judicata.

The arbitrator also found that the applicant was not required to proceed by way of an application for variation or revocation.

The insurer's motion was dismissed, allowing the substantive claim to proceed to arbitration.

The applicant sought to arbitrate a dispute for statutory accident benefits arising from a 1990 motor vehicle accident.

A previous arbitration and appeal had found the applicant statute-barred from proceeding.

Following the Supreme Court of Canada's decision in Smith v. Co-operators, the applicant applied again, arguing the insurer's refusal was invalid and the limitation period had not begun.

The insurer moved to dismiss the application based on res judicata and issue estoppel.

The arbitrator found that the previous decisions did not explicitly determine the sufficiency of the insurer's notice of refusal.

The arbitrator declined to apply res judicata or issue estoppel at this stage, allowing the parties to make further submissions on the application of Smith v. Co-operators and Rule 61 of the Practice Code.

The applicant union sought certification for a bargaining unit of the respondent's office, clerical, and technical employees.

A group of objecting technical employees argued they had a separate community of interest and should be excluded from the unit.

The Board applied its long-standing practice of grouping technical employees with office and clerical staff to avoid undue fragmentation, finding no unique circumstances to justify a departure.

The Board also declined the respondent's request to direct a representation vote under section 7(2) of the Act, holding that the union's support must be assessed across the entire appropriate bargaining unit, not just among the objecting technical employees.

The technical employees were included in the unit.