Martha A. Cook

The plaintiff in a wrongful dismissal action brought a motion seeking court-ordered finalization of a discovery plan after the parties failed to agree.

The court reviewed the history of the parties' negotiations and the general principles applicable to discovery plans under Rule 29.1.

The court finalized the discovery plan, incorporating specific reservations from the defendant regarding the scope of documentary discovery, and set deadlines for productions and oral examinations.

Costs of the motion were awarded to the plaintiff.

This is a costs endorsement following an appeal where the appellants were substantially successful on the quantum of damages.

The parties could not agree on costs.

The court fixed costs at $27,000, inclusive of HST and disbursements, to be paid by the respondent to the appellants, emphasizing that the amount should be fair and reasonable rather than an exact measure of actual costs.

The plaintiff sued after an OPP vehicle struck his arm while he was riding a bicycle at dusk, alleging negligence, unlawful detention, Charter breaches, chronic injury, income loss, future care costs, special damages, and punitive damages.

The court found the defendant liable for the collision but held the plaintiff 40% contributorily negligent for riding a black bicycle in dark clothing without the fixed lights and reflectors required by the Highway Traffic Act.

Applying the Grant and MacDonald frameworks, the court held there was no detention and therefore no breach of ss. 9, 10(a), or 10(b) of the Charter, and no Charter damages under Ward.

Applying the Insurance Act threshold and O. Reg. 461/96 criteria, the court found the plaintiff failed to prove a permanent serious impairment, largely because of credibility concerns, inconsistent self-reporting, and surveillance evidence.

In the alternative, the court assessed general damages at $50,000, awarded $4,800 in future care costs and $12,806.90 in special damages, denied income-related and punitive claims, and awarded costs to the defendant.

This is a second appeal concerning the assessment of damages in a dispute between pig farmers (appellants) and a supplier (respondent) over the delivery of diseased animals.

The appellants argued for a reasonable apprehension of bias by the trial judge and errors in the damages assessment.

The Court of Appeal dismissed the bias claim and the arguments regarding the date of damages assessment and the consideration of hindsight evidence.

However, the Court found that the trial judge erred in calculating lost profits for a specific period by misapprehending an expert report, leading to an incorrect deduction.

The appeal was allowed in part, correcting the damages award in favour of the appellants.

The appellants appealed a costs order from a summary judgment motion where they were granted an injunction regarding a wood stove and $1,500 in damages for nuisance, but no costs.

The Divisional Court dismissed the appeal, noting that the respondents had offered to consent to the injunction early on and the appellants had claimed $60,000 in damages but only recovered $1,500.

The court found no error in principle in the motion judge's decision that each party bear their own costs.

This appeal arose from a decision granting partial summary judgment in a construction lien dispute.

The appellants (Larson Properties Partnership Group and Kevin Gary Larson) challenged the motion judge's finding of no genuine issue requiring a trial and the appropriateness of partial summary judgment.

The Court of Appeal upheld the motion judge's decision, finding no error in the determination that a genuine issue did not exist and that the partial summary judgment was appropriate given subsequent resolutions of other aspects of the litigation.

The appeal was dismissed.

The appellant appealed a Committee of Adjustment decision granting minor variances to an industrial property to reduce setbacks and separation distances.

The applicant sought the variances to relocate sea containers and establish a defined parking area for heavy vehicles associated with its legal non-conforming contracting business.

The appellant argued the variances would intensify the use and exacerbate existing noise, odor, and traffic impacts.

The Tribunal found the variances would optimize the site's use, improve safety, and mitigate existing impacts, satisfying the four tests under s. 45(1) of the Planning Act.

The appeal was dismissed and the variances were authorized subject to a three-year temporary condition.

The defendants brought motions to strike the plaintiff's Fresh As Amended Statement of Claim and dismiss the action.

The plaintiff, a therapeutic counsellor, had previously sued the defendants in Small Claims Court and initiated various complaints regarding a fee-splitting and supervision arrangement.

The court found that the current action was an attempt to relitigate claims that had already been dismissed or settled, constituting an abuse of process.

Furthermore, the claims were statute-barred as they were discovered more than two years before the action was commenced.

The court dismissed all claims except for a defamation claim against one defendant, which was struck for lack of particularity but with leave to amend.

Libro Credit Union Limited appealed a motion judge's order that dismissed its motion for a declaration of priority over funds held by the Sheriff in garnishment proceedings.

The motion judge had incorrectly concluded that a prior order by Gorman J. had determined the priority issue, thus deeming the appellant's motion a collateral attack.

The Court of Appeal found that Gorman J. had not made such a determination and explicitly left the priority dispute open.

The appeal was allowed, the motion judge's order was set aside, and the matter was remitted to the Superior Court for a hearing on the merits of the priority dispute.

The moving party brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal.

As neither party filed costs submissions, no costs were awarded.

The moving party brought a motion for leave to appeal a December 23, 2019 order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $2,500 to the respondents.

The applicant sought partition and sale of a jointly owned property and equal division of net proceeds.

The respondent counterclaimed for transfer of the property into her name alone based on unjust enrichment and constructive/resulting trust, citing her significant financial contributions to renovations.

The court found no unjust enrichment regarding the property, as the applicant's equity did not increase, and the parties' reasonable expectation was 50/50 ownership.

However, the court found unjust enrichment regarding a Harley-Davidson motorcycle, ordering the applicant to pay the respondent 85% of its separation value.

The court ordered the property to be sold with net proceeds divided equally, subject to an adjustment payment from the applicant to the respondent for the motorcycle and shared debts.

The applicant sought declarations of her mother's incapacity to manage property, personal care, and instruct counsel, and an order for a new capacity assessment, as well as removal of her mother's s. 3 counsel.

The court dismissed the applicant's motion, finding that previous assessments of incapacity for property and personal care were sufficient and that a further assessment for capacity to instruct counsel was unnecessary and intrusive.

The court affirmed the role of s. 3 counsel and the principle that counsel determines their client's capacity to instruct, absent strong evidence to the contrary.

The applicant was injured in a motor vehicle accident and sought the cost of three examinations (a functional abilities evaluation, a physiatry assessment, and a chiropractic assessment) five years post-accident.

The respondent denied the assessments as not reasonable and necessary.

The adjudicator found that the applicant had returned to his pre-accident employment as a millwright without modifications and was able to perform his activities of daily living.

Preferring the evidence of the respondent's physiatrist who examined the applicant over the applicant's experts who only reviewed documentation, the adjudicator concluded the assessments were not reasonable and necessary.

The claims for the cost of examinations, an award for unreasonably delayed payments, and interest were dismissed.

The applicant sought relief from a municipal tree-cutting by-law under the Farming and Food Production Protection Act, 1998.

The respondent municipality brought a motion to dismiss or stay the application pending the outcome of related charges in Provincial Offences Court.

The parties agreed to withdraw the application without prejudice on consent, allowing for a future application or referral once the court proceedings conclude.

The plaintiffs brought a motion to strike the remaining defendant's statement of defence for failing to comply with a court-ordered timetable.

The defendant had ignored the timetable while pursuing an appeal of the order, without seeking a stay.

The court found the defendant's deliberate non-compliance unacceptable but declined to strike the defence, noting the plaintiffs' own six-year delay in moving the action forward.

The motion to strike was dismissed, and an amended timetable was ordered.

The appellants appealed the dismissal of their application to quash a municipal bylaw designating their property as a heritage building.

The appellants argued the bylaw was void ab initio due to a defect in the notice of intention to designate.

The Court of Appeal upheld the application judge's finding that the application, brought under s. 273 of the Municipal Act, 2001, was barred by the one-year limitation period in s. 273(5), as the appellants had actual notice of the designation years before commencing the proceeding.

The appeal was dismissed.

The respondent subcontractor obtained default judgment against the general contractor for unpaid work and subsequently sued the appellant owners for breach of statutory trust under the Construction Lien Act.

The motion judge granted summary judgment against the owners and their directors.

On appeal, the respondent conceded the motion judge erred in finding a subcontractor could be a beneficiary of the owner's trust under s. 7(1).

The respondent alternatively argued the owners were liable under s. 13 for having 'effective control' of the general contractor by paying its invoices.

The Divisional Court rejected this argument, holding that merely paying invoices does not constitute effective control of a corporation's relevant activities.

The appeal was allowed and the claim against the owners dismissed.

The plaintiff in a defamation action sought leave to amend his statement of claim to add allegations of further defamatory statements by the existing defendant and to add a psychiatrist as a new defendant for negligence and intentional infliction of mental suffering.

The court denied leave to add the new defamation allegations against the existing defendant, finding them barred by the two-year limitation period and lacking sufficient particulars.

However, the court granted leave to add the claims against the psychiatrist, finding that although the negligence claim based on a third-party duty of care was novel, it was not plain and obvious that it would fail.

The court also allowed the intentional infliction of mental suffering claim to proceed.

Property owners challenged a municipal heritage designation by-law enacted under the Ontario Heritage Act designating their commercial property and “all original interior features.” They argued the by-law was void due to improper notice and alternatively sought severance of certain interior items from the designation.

The court held that although notice by mail contained a minor postal code error and did not strictly comply with the statutory notice provision, the owners had actual notice of the municipality’s intention to designate the property.

The defect rendered the by-law potentially voidable but not void ab initio, and the one‑year limitation period for quashing municipal by-laws barred the application.

The court further held that the disputed clock, cabinets, counters, showcases, and mirrors were fixtures forming part of the real property and could lawfully be included in the heritage designation.