Mary Jo M. Nolan

The plaintiffs, a precast concrete manufacturer and its sales agent, sued an engineering company and its principal for breach of contract and negligence arising from delayed and error-filled engineering drawings for a parking garage project.

The court found the defendants liable in both contract and tort for pure economic loss.

The court admitted subcontractor invoices as business records under the principled approach to hearsay to prove damages.

The defendants' third-party claim against their insurers was partially allowed, with the court allocating damages between covered errors and excluded delays.

The plaintiffs in two separate personal injury actions appealed interlocutory orders requiring them to undergo examinations by non-medical practitioners (a vocational assessor and a chiropractor).

The plaintiffs argued that section 105 of the Courts of Justice Act constitutes a complete code for such examinations, precluding orders for non-medical practitioners.

The Divisional Court held that section 105 does not completely occupy the field and that a Superior Court judge has inherent jurisdiction to order an examination by a non-medical practitioner where necessary to ensure trial fairness and justice.

Applying this test, the court dismissed the appeal in the Ziebenhaus action, finding the vocational assessment was necessary to meet the plaintiff's case.

However, the court allowed the appeal in the Jack action, finding the defendants failed to demonstrate that the functional abilities evaluation was necessary.

The applicant insurer sought judicial review of a Director's Delegate decision upholding an arbitrator's award for private school tuition and a special award for unreasonably withholding benefits under the Statutory Accident Benefits Schedule.

The Divisional Court found the Delegate's broad interpretation of 'incurred' and 'undertaken' under s. 15 of SABS was reasonable.

The court also upheld the finding that the insurer unreasonably denied benefits by relying on flawed expert reports and ignoring the insured's future needs.

The court fixed the quantum of the special award at $20,000.

The moving party (father) brought a motion to change his child support obligations after leaving his full-time employment to pursue a full-time university degree.

The responding party (mother) opposed the motion, arguing he was intentionally under-employed and sought an increase based on his previous earning trajectory.

Applying the Drygala test, the court found the father was intentionally under-employed but that his return to school was required by his reasonable educational needs and would ultimately benefit the child.

However, noting his ability to work part-time and full-time during the summer, the court imputed an annual income of $20,000 and reduced his child support obligation to $172 per month.

The applicant ministry sought judicial review of an order of the Information and Privacy Commissioner requiring disclosure of the full names of Family Responsibility Office employees contained in a requester’s file.

The ministry argued the information was excluded from disclosure under s. 65(6)3 of the Freedom of Information and Protection of Privacy Act as relating to labour relations matters, or alternatively exempt under ss. 14(1)(e) and 20 due to safety concerns.

The Divisional Court held the IPC reasonably concluded the records were created in the course of the institution’s operational mandate rather than about labour relations, and therefore were not excluded from the Act.

The court also found no evidence that disclosure to the requester posed a safety risk to the employees and determined that compliance with the IPC order would not conflict with a prior Grievance Settlement Board order governing employee identification practices.

The applicant sought judicial review of the Registrar General's decision to cancel his birth registration under the Vital Statistics Act, following a criminal conviction where it was found he had assumed a false identity.

The applicant argued that delegating the decision to a Ministry lawyer created a reasonable apprehension of bias and that denying his request for a teleconference hearing breached procedural fairness.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias given the distinct roles within the Ministry, and concluding that a written hearing satisfied the duty of fairness as the applicant failed to provide new evidence conclusively impeaching the prior judicial finding of his identity.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision which found that the plaintiffs' right of action for personal injuries sustained in a parking lot motor vehicle accident was not taken away under the Workplace Safety and Insurance Act.

The applicant argued the Tribunal erred in its treatment of post-hearing evidence and in its factual findings regarding the employment status of the defendants.

The Divisional Court dismissed the application, holding that the Tribunal's decision was reasonable, it did not breach procedural fairness, and its weighing of the evidence was entitled to deference.

The tenant appealed an eviction order from the Landlord and Tenant Board for non-payment of rent.

After failing to comply with an order by Wilton-Siegel J. to pay rent arrears, the appeal was dismissed by the Registrar.

The tenant obtained a stay and a peremptory hearing date before a full panel of the Divisional Court.

At the hearing, the tenant requested an adjournment, which was denied.

The court dismissed the appeal and lifted the stay, noting the tenant had filed no materials, continued to live in the premises without paying rent, and failed to comply with previous orders.

The self-represented appellant tenant requested an adjournment of his appeal because he had not received the hearing transcript and lacked assistance from an amicus.

The Divisional Court denied the request, noting that a previous order had made the hearing date peremptory.

Minority shareholders sought relief under the oppression remedy and dissent and appraisal provisions of the Business Corporations Act after a majority shareholder attempted to restructure the corporation by reducing common shares and issuing scrip certificates that would effectively eliminate the minority’s interests.

The court determined the fair value of the dissenting shareholders’ shares as of the valuation date and rejected a proposed defence of laches, holding that the Limitations Act, 2002 applies to oppression claims and that laches does not apply where the claim is brought within the statutory limitation period.

While some alleged acts of misconduct, including removal of a director and management fees, were not oppressive, the proposed share restructuring scheme was found to be oppressive because its real purpose was to squeeze out the minority shareholders without fair compensation.

The court fixed the fair value of the shares based on a hotel valuation and awarded limited damages for oppression given that the dissent remedy already compensated the shareholders.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings regarding the restitution of allegedly illegal lottery licensing fees.

The motions judge had certified all claims going back to 1990, including those that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the certification order, particularly regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues to be of general importance to the development of class action law.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings seeking restitution of lottery licensing fees, including claims that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the motions judge's analysis regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues raised were of general importance to the development of class action law.

Following an interim motion in a family law proceeding involving custody, parenting time, and child support, the court addressed the issue of costs.

Most substantive issues had been resolved by consent after the involvement of the Office of the Children’s Lawyer, leaving only certain parenting schedule recommendations and interim child support to be determined.

The applicant sought substantial indemnity costs relying in part on an earlier offer to settle that closely resembled the eventual order.

The court held that although the applicant was the successful party and the offer to settle was relevant, the issues were not complex and both parties had acted reasonably.

Costs were therefore reduced to a partial amount considered fair in the circumstances.

The defendants sought leave to appeal to the Divisional Court from an order requiring production of an environmental report over which litigation privilege was claimed.

The report had been referenced in an affidavit and supported by an invoice attached as an exhibit.

The court considered whether referencing the report and attaching payment documents constituted a waiver of litigation privilege and whether the dominant purpose test had been properly applied.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court found conflicting authority and concluded there was reason to doubt the correctness of the earlier order compelling production.

Because the issues regarding litigation privilege and waiver had broader importance to litigation practice, leave to appeal was granted.

The plaintiffs brought an action for damages after a student suffered a brain injury following an altercation with another student during a morning playground game at school.

The claim alleged negligent supervision by the school board, principal, and teachers, inadequate supervision planning, and failure to identify the students as requiring heightened monitoring due to prior behavioural issues and bullying.

The court applied the prudent parent standard under the Education Act and relevant case law governing school supervision.

It found that the school maintained an adequate supervision plan and that supervising teachers were circulating appropriately at the time of the incident.

The altercation occurred suddenly during an otherwise acceptable playground activity and would likely not have been prevented even with additional supervision.

The defendants brought a motion to strike portions of the plaintiff's Fresh as Amended Statement of Claim, arguing they offended s. 36(3) of the Regulated Health Professions Act by referring to the contents and outcomes of a College of Nurses discipline proceeding.

The plaintiff argued the Court of Appeal had previously granted leave to include these facts.

The court held that s. 36(3) provides an absolute prohibition against admitting records or decisions of College proceedings in civil actions.

The motion was granted, and the impugned portions of the pleadings were struck.

Two bus transportation companies sought an interlocutory injunction preventing a student transportation consortium from closing a request for proposals (RFP) for school bus services.

The moving parties alleged the procurement process violated directives under the Broader Public Sector Accountability Act and failed to follow Ministry guidance regarding fair competitive procurement.

Applying the three‑part test in RJR MacDonald v. Canada (Attorney General), the court held that the plaintiffs established a serious issue to be tried concerning compliance with procurement directives and fairness of the RFP process.

The court further found that the potential loss of market share and collapse of small rural bus companies constituted irreparable harm and that the balance of convenience favoured maintaining the status quo pending trial.

An interlocutory injunction was granted requiring the defendant to withdraw the RFP pending determination of the underlying action or a related expedited trial.

The plaintiffs sued various provincial and municipal officials for negligent investigation, malfeasance in public office, and Charter breaches after the plaintiff Hilary Payne was charged with arson by negligence following a fire at a student rental property.

The defendants brought motions for summary judgment to dismiss the claims.

The court granted summary judgment dismissing the claims against one defendant (an engineer-in-training) and the Charter claims under ss. 8, 11(d), and 11(g).

However, the court dismissed the balance of the summary judgment motions, finding that the novel issues of duty of care, standard of care, causation, and statutory immunity required a full trial to resolve conflicting evidence and assess credibility.

Following the breakdown of a long marriage, the applicant sought ongoing spousal support, alleging both compensatory and non-compensatory entitlement.

The court found no compensatory basis because both spouses had maintained successful careers and shared household and parenting responsibilities without significant economic sacrifice by either party.

However, given the substantial income disparity and the marital standard of living during the final year of the relationship, the court found entitlement to transitional non-compensatory spousal support.

Applying the Divorce Act and guidance from the Spousal Support Advisory Guidelines, the court ordered time-limited support to assist the applicant in adjusting to a lower post-separation standard of living.

Child support arrears were also ordered.

Following a successful application concerning governance of a religious society, the applicants sought full indemnity costs of $280,000 against numerous respondents.

They argued that the respondents engaged in reprehensible conduct by refusing to comply with the society’s constitution, attempting to undermine election results, and advancing questionable evidence during litigation.

The court held that elevated costs require either a Rule 49 offer or reprehensible conduct in the litigation itself, and that most of the criticized behaviour occurred outside the conduct of the litigation.

Applying the reasonableness principles under s.131 of the Courts of Justice Act and r.57.01 of the Rules of Civil Procedure, the court determined that partial indemnity costs were appropriate.

Costs of $160,000 inclusive of fees, disbursements, and taxes were awarded.