Mark William Barrett

The Tribunal held a Case Management Conference regarding appeals by the applicant against the municipality's failure to make a decision on Official Plan and Zoning By-law Amendment applications for a proposed mixed-use redevelopment.

The Tribunal consolidated the appeals, granted party status to a hospital and a conservation commission on consent, and scheduled a second Case Management Conference and a 10-day hearing.

The Ontario Land Tribunal issued an amending decision to correct technical and typographical errors in a Replacement Decision and Order dated April 7, 2022.

Pursuant to Rule 24.4 of the Tribunal's Rules of Practice and Procedure, the Tribunal deleted and replaced the Title of Proceeding and the Appearances section.

In all other respects, the original Replacement Decision and Order remains unchanged.

The Ontario Land Tribunal held a Case Management Conference regarding multiple appeals of the City of Toronto's Proposed Official Plan Amendment No. 486 (King-Spadina Secondary Plan).

The Tribunal issued a Procedural Order establishing the hearing dates, Issues List, and order of evidence, and adjourned certain site-specific appeals sine die.

The plaintiff, owner of a longstanding craft beer competition, brought a motion for an interim injunction to prevent the defendants from holding a competing national craft beer competition.

The plaintiff alleged that a former employee, now working for the defendant association, misused confidential financial and business information obtained during his employment and during subsequent failed negotiations to purchase the plaintiff's competition.

The court applied the RJR MacDonald test and found a serious issue to be tried, presumed irreparable harm due to the nature of the confidential business information, and determined the balance of convenience favoured the plaintiff.

A time-limited injunction was granted until September 1, 2022.

The applicant pool manufacturer sought a declaration that the respondent dealer was required to defend it against third party claims pursuant to a hold harmless and indemnity provision in their dealership agreement.

The third party claims sought contribution and indemnity from the applicant for its own alleged negligence in overseeing a pool installation.

The court dismissed the application, finding that the indemnity provision only applied to claims arising out of the respondent's negligence, and did not require the respondent to defend the applicant against allegations of the applicant's own negligence under the Negligence Act.

Contractors sought declarations compelling three commercial general liability insurers to defend them in an underlying construction action concerning alleged defects in septic systems installed in a residential subdivision.

The court considered whether the pleadings disclosed “property damage” caused by an “occurrence” under the policies and whether exclusions, including the “your work” and “professional services” exclusions, applied.

Although the pleadings raised a mere possibility of property damage caused by an occurrence, the court found that the “your work” exclusion applied and that the subcontractor exception was not established on the pleadings because the alleged supplier of filter sand was merely a supplier and not a subcontractor.

As a result, the insurers had no duty to defend.

The motion for a declaration compelling a defence was dismissed.

The insurer appealed from a declaration that it owed a duty to defend and indemnify insured parents sued in negligence for allegedly failing to prevent their daughter's bullying of another student.

The Court of Appeal held that the negligence claim was properly pleaded and was not derivative of the intentional tort claim against the daughter.

However, the court found that the policy exclusion for failure to take steps to prevent physical, psychological or emotional abuse, molestation or harassment was unambiguous and squarely captured the pleaded failures to investigate, remedy, discipline, and prevent the harassment.

The insurer therefore had no duty to defend or indemnify in the underlying action.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The moving defendants sought summary judgment dismissing negligence and occupiers’ liability claims arising from an alleged assault between two individuals in a church basement.

The plaintiff alleged church representatives knew of prior threats relating to a private mortgage dispute and failed to warn or protect her, giving rise to vicarious liability and breach of the Occupiers’ Liability Act.

The court held that credibility disputes concerning alleged prior threats and communications with church representatives required viva voce evidence and could not be resolved on a summary judgment record.

However, the plaintiff adduced no evidence linking the national church corporation to the events or establishing vicarious liability against it.

Summary judgment was therefore granted dismissing the claim against that corporation but refused as against the local church.

The appellant appealed the dismissal of his action against his insurance company and broker following a house fire.

The trial judge found that the appellant had a financial motive to set the fires, misrepresented his insurance history to the broker, and had the best opportunity to commit the arson.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of credibility, motive, opportunity, or the overwhelming evidence of arson.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded on a partial indemnity scale to the respondents and cross-appellants, Father Reed and the Diocese, in the amount of $18,000.

The Phoenix group of insurers and the Ecclesiastical Insurance Office were each awarded costs of $5,549.02.