Leonard F. Marsello

At a Case Management Conference for an expropriation compensation claim, the Tribunal determined that the scheduled 10-day hearing could not proceed due to incomplete discoveries, outstanding undertakings, and the claimants' intention to amend their pleadings.

The Tribunal adjourned the hearing, scheduled a further Case Management Conference to set new dates, and ordered the claimants to identify any additional expert witnesses.

The respondent's request for interim costs thrown away was dismissed, with costs reserved to the final hearing.

The parties attended a Telephone Conference Call regarding five appeals relating to an expropriation by the Ministry of Transportation in London.

The parties requested an update on proposed mediation dates and sought minor amendments to the Procedural Order on consent.

The Tribunal ordered the revised Procedural Order to be in full force and effect and confirmed that the Case Coordinator would communicate with the Mediation Team regarding the February mediation dates.

A case management conference was held for five appeals relating to an expropriation by the Ministry of Transportation in the Community of Tempo, London, Ontario.

The Tribunal ordered that the five files be heard together in accordance with Rule 16.3 of the Tribunal's Rules of Practice and Procedure.

A ten-day video hearing was scheduled for April 2026, and a procedural order was issued to govern the pre-hearing requirements, including mediation, discovery, and the exchange of expert reports.

A case management conference was held regarding five appeals relating to an expropriation by the Ministry of Transportation.

The Tribunal ordered that the five appeals be heard together and scheduled a 10-day video hearing for April 2026.

A procedural order was approved to govern the pre-hearing requirements.

At a Case Management Conference regarding a land compensation claim under the Expropriations Act, the Tribunal was advised that the claimant's appraisal had been served and the respondent Ministry had requested 18 documents to review it.

The claimant confirmed the documents were en route.

The Tribunal scheduled a further Case Management Conference for October 1, 2021, to allow the Ministry's experts time to review the materials and report.

The plaintiffs, a group of affiliated wine manufacturers and retailers, brought an action against the LCBO, the AGCO, and the Crown challenging the 'Made Policy', which regulates where wineries can sell their products.

The parties brought six competing motions, including motions to strike pleadings, motions for summary judgment, and a motion regarding the late disclosure of a tolling agreement between the defendants.

The court dismissed the plaintiffs' motion to strike the defendants' pleadings over the tolling agreement, finding it did not alter the expected adversarial landscape.

The court struck significant portions of the plaintiffs' statement of claim against the LCBO and AGCO, particularly allegations relating to pre-2001 conduct that had been settled in prior litigation, and claims for intentional interference with economic relations.

The Crown's motion for summary judgment was granted, dismissing the action against it.

The AGCO's and the plaintiffs' respective motions for summary judgment were dismissed, as the complex factual matrix and allegations of bad faith required a trial.

The plaintiffs appealed an order of a Master upholding numerous refusals made during Rule 39.03 examinations of non-party witnesses.

The examinations related to interlocutory motions concerning the late disclosure of a tolling agreement between the defendants.

The plaintiffs alleged 14 errors of fact and law, primarily challenging the Master's findings on litigation privilege, common interest privilege, and the scope of permissible questions for Rule 39.03 witnesses.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or errors of law, and affirming that the documents and communications surrounding the tolling agreement were protected by privilege.

Three cross-appeals arose from the interpretation of a 1985 environmental indemnity granted by the Province of Ontario to former pulp mill owners, their successors and assigns, in the context of the settlement of mercury contamination litigation brought by two First Nations.

The majority held that the indemnity did not cover first party regulatory compliance orders, as the motion judge made palpable and overriding factual errors, and the indemnity, properly read as a whole, was intended to cover only third party pollution claims.

The appeal of the Province was allowed; the appeals of the corporate successors were dismissed.

The dissent (Côté, Brown and Rowe JJ.) would have dismissed the Province's appeal and allowed the appeal of Resolute, concluding the indemnity covered the Director's remediation order, that the fettering doctrine did not render the indemnity unenforceable, and that Resolute — as Great Lakes' corporate successor — was entitled to the indemnity's protection, but Weyerhaeuser was not, as neither an assignee nor a corporate successor of Great Lakes or Reed.

The Court of Appeal for Ontario considered whether a 1985 indemnity provided by the Province of Ontario to Great Lakes and Reed covered the costs of complying with a 2011 Director's Order requiring remedial work at an abandoned mercury waste disposal site near Dryden, Ontario.

The motion judge had granted summary judgment in favour of Weyerhaeuser and Resolute, finding both were entitled to indemnification.

The appellate court was divided.

The majority (Brown and Lauwers JJ.A.) held that the 1985 indemnity did cover the costs of complying with the Director's Order, but found that Resolute had no legal interest in the indemnity because Bowater had assigned the full benefit to Weyerhaeuser in 1998.

The majority remitted the issue of Weyerhaeuser's rights as assignee to the trial court.

Justice Laskin dissented, arguing the 1985 indemnity covered only third-party pollution claims, not first-party regulatory compliance costs.

This case concerns the interpretation of a 1985 indemnity agreement granted by the Province of Ontario to Great Lakes Forest Products Limited (now Resolute FP Canada Inc.) and its successors and assigns, regarding mercury contamination.

Weyerhaeuser Company Limited, a subsequent owner of the property, and Resolute sought indemnity from the Province for costs incurred complying with a 2011 environmental remediation order issued by the Ministry of the Environment.

The court granted summary judgment, finding that the indemnity's broad language covered statutory claims by provincial agencies and that the fettering doctrine did not apply to this business agreement.

Weyerhaeuser was also found to be able to rely on the indemnity as a successor or assignee.

The representative plaintiff brought a class action on behalf of private issuers who operate ServiceOntario outlets, alleging that Ontario breached its duty of good faith and acted unreasonably in exercising its unilateral discretion to set their compensation.

The plaintiff argued that the compensation was inadequate and failed to keep pace with expenses.

The court dismissed the action, finding no evidence of dishonesty or bad faith by Ontario.

The court held that the duty of good faith applies to the performance of the contract, not to ensuring a commercially reasonable outcome, and that Ontario's compensation decisions were not commercially unreasonable in any event.

The alternative claim for unjust enrichment was also dismissed as the contract constituted a juristic reason for the enrichment.

In this certified class action, the defendant moved for summary judgment dismissing claims by private issuers of motor vehicle licences and registrations alleging breach of contract and unjust enrichment arising from compensation fixed by the province.

The plaintiff informally sought summary judgment on issues including commercially reasonable compensation, good faith, and the anti-fettering doctrine.

Applying the post-Hryniak summary judgment framework, the court held that the action raised numerous genuine, novel, and profound issues at the intersection of private and public law that should be determined at trial.

The court emphasized the need for a full evidentiary record, party vindication, and appellate review.

Both the motion and the informal cross-request for summary judgment were dismissed, with costs in the cause.

The defendants sought leave to appeal a motion judge's decision refusing a sealing order for Minutes of Settlement from prior litigation between the parties.

The motion judge had found insufficient evidence to justify sealing the documents under the Sierra Club test.

The Divisional Court granted leave to appeal, finding that there was reason to doubt the correctness of the motion judge's decision, particularly in light of Supreme Court of Canada jurisprudence establishing settlement privilege as a class privilege.

The court also granted an interim sealing order pending the appeal and awarded costs to the moving parties.

The Ministry of the Environment appealed a CCAA judge's decision that environmental remediation orders issued against an insolvent company were subject to a stay of proceedings.

The insolvent company had abandoned a contaminated site after selling its other assets.

Applying the Supreme Court's decision in AbitibiBowater, the Court of Appeal found it was sufficiently certain that the Ministry would perform the remediation work itself, making the regulatory orders in substance a provable monetary claim in the insolvency.

The appeal was dismissed.

The Ministry of the Environment appealed a CCAA judge's order declaring that environmental remediation orders issued against the insolvent respondents were financial in nature and subject to a CCAA stay of proceedings.

Applying the Supreme Court's decision in AbitibiBowater, the Court of Appeal held that ongoing environmental remediation obligations are only provable claims if it is sufficiently certain that the province will perform the work and seek reimbursement.

The Court found it was not sufficiently certain the MOE would perform the remediation for most of the sites, as the orders were also directed at subsequent owners.

The appeal was allowed, and the stay was modified to apply only to the portion of the London property still retained by the respondents.

The appellant operated a truck stop on Highway 17 that was effectively put out of business when the province constructed a new section of Highway 417, severely restricting access to the property.

The Ontario Municipal Board awarded compensation for injurious affection under the Expropriations Act.

The Court of Appeal set aside the award, finding the Board failed to adequately balance competing rights and to recognize the elevated importance of public utility.

The Supreme Court of Canada allowed the appeal, holding that reasonableness of interference must focus on whether the individual claimant has shouldered a disproportionate share of the burden of construction, not on whether the public benefit outweighs private harm.

The Board's decision was restored.

The appellants appealed from the Court of Appeal's reversal of the CCAA court's decision regarding the priority of pension plan wind-up deficiency claims over court-ordered DIP financing charges.

The majority held that wind-up deficiencies under s. 75(1)(b) of the Pension Benefits Act were subject to a statutory deemed trust under s. 57(4), but that the deemed trust was superseded by the DIP charge by virtue of the doctrine of federal paramountcy.

The majority further held that while the employer-administrator breached its fiduciary duty by failing to ensure the pension plan beneficiaries had adequate notice and representation in the CCAA proceedings, a constructive trust was not an appropriate remedy because the breach did not result in an identifiable asset that it would be unjust for the wrongdoer to retain.

In CCAA proceedings involving a large telecommunications company, the applicants sought authorization to cease environmental remediation work at several contaminated sites and to have regulatory remediation orders treated as claims within the insolvency process.

The provincial environmental regulator argued that its orders imposed regulatory performance obligations rather than monetary claims and therefore should not be stayed by the insolvency proceedings.

The court held that where a debtor is no longer operating and compliance with regulatory orders necessarily requires the expenditure of funds, such orders are in substance financial obligations.

The court concluded that environmental remediation orders relating to pre‑filing contamination constituted claims subject to the CCAA claims process and were stayed by the existing stay of proceedings.

The applicants were authorized to cease remediation activities and environmental claims were directed to be resolved through the established claims procedure.

The defendants sought leave to appeal an interlocutory order requiring production of numerous documents relating to police conduct during a blockade and the Crown’s duty to consult with Indigenous peoples before granting mining rights.

The moving parties argued the motion judge failed to give adequate reasons, misapplied relevance and proportionality principles under the Rules of Civil Procedure, and improperly assumed possession of certain documents.

The court held that the motion judge provided sufficient reasons and properly applied the relevance and proportionality requirements for documentary production.

The requested materials, including police notes and records related to consultation obligations, were highly relevant to claims involving access to property and alleged Crown negligence.

The defendants failed to establish good reason to doubt the correctness of the order, and leave to appeal was refused.

The claimant owned a truck stop on Highway 17.

The Province constructed a new section of Highway 417 for public safety reasons, which rerouted traffic and altered access to the claimant's property.

The claimant sought compensation for injurious affection under the Expropriations Act.

The Ontario Municipal Board awarded damages, finding the interference constituted an actionable nuisance and resulted from the construction, not the use, of the highway.

The Divisional Court upheld this decision.

On further appeal, the Court of Appeal held that while the interference was substantial, the Board erred in its reasonableness analysis by failing to properly balance the competing interests, particularly the significant public utility of the new highway.

The Court of Appeal concluded the interference was not unreasonable, allowed the appeal, and dismissed the claimant's claim for injurious affection.