Michael G. Emery

Robert Reed, a former employee and minority shareholder of Cooper-Gordon Ltd. (CGL), brought a motion for leave to appeal an arbitral decision on questions of law under s. 45 of the Arbitrations Act, 1991.

Reed sought to appeal the arbitrator's findings on wrongful dismissal notice period, unpaid bonuses and RRSP contributions, share valuation, and claims for punitive damages or oppression remedy.

The court granted leave to appeal on two issues: the mathematical error in calculating the wrongful dismissal notice period (one month difference) and the arbitrator's omission to address Reed's claims for unpaid RRSP and bonus payments from 2016-2019.

Leave was denied for the share valuation, oppression/punitive damages, and procedural fairness claims, as these were deemed questions of fact or mixed fact and law, or lacked sufficient legal merit.

The infant plaintiff suffered a severe and permanent brachial plexus injury during birth after encountering shoulder dystocia.

The plaintiffs brought a medical negligence action against the delivering obstetrician, alleging he applied excessive downward traction.

The defendant argued the injury was caused by maternal propulsive forces.

The court found that the defendant breached the standard of care by applying more than gentle downward traction, which caused the injury.

The court awarded $811,564 in total damages, including non-pecuniary damages, future care costs, future loss of income, and Family Law Act damages for the family.

The plaintiffs, Minoru and Sayoko Yamada, sought summary judgment to declare the forfeiture of deposits paid by the defendant, Janina Joseph-Walker, under an Agreement of Purchase and Sale (APS) for their property.

The defendant repeatedly failed to close the transaction and to pay an additional deposit required to reinstate the APS after its initial termination.

The court found no genuine issue for trial, concluding that the APS was terminated due to the defendant's breaches and was never reinstated.

The court also determined that the forfeiture of the $53,000 deposit was proportionate and not unconscionable, considering the defendant's prolonged delays and her registration of a Certificate of Pending Litigation against the property.

This case is a continuation of a summary judgment on liability for a private mortgage.

The court conducted a trial to determine the exact amount owing under the charge, specifically addressing disputes over a lender's fee and interest adjustment.

The court found that a lender's fee was not enforceable without an express agreement, reducing the principal.

It also adjusted the interest calculation based on the actual advance date.

The final judgment established the total amount owing and granted an order for possession, while also addressing costs.

The non-party Gore Mutual Insurance Company brought a motion under Rule 37.14(1) to vary a previous production order (the "Doi Order"), arguing that its failure to appear at the original motion was due to accident or mistake.

The plaintiff opposed the motion.

The court dismissed Gore Mutual's motion, finding that it failed to establish that its non-appearance was due to accident or mistake, but rather due to carelessness and lack of diligence in processing court documents.

The court also found that Gore Mutual failed to bring its motion forthwith and that the general claim of prejudice lacked merit, especially given the implied undertaking rule.

This decision addresses the costs arising from a successful motion to annul a corporate bankruptcy.

The court found that the assignment into bankruptcy was an improper use of the Bankruptcy and Insolvency Act, driven by self-interest to halt ongoing litigation.

While the conduct was not 'especially egregious' to warrant full indemnity costs, it justified an award of substantial indemnity costs.

The court awarded the successful party $55,750 in substantial indemnity costs against the party who improperly initiated the bankruptcy, comprising fees, HST, and disbursements.

No costs were awarded to or against the trustee.

The applicant brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and ordered costs of $15,000 payable by the applicant to the respondent, to be netted against a prior costs award.

The court also extended the interim relief previously ordered until the end of the day.

The Crown brought a pre-trial application under section 714.1 of the Criminal Code to allow the adult complainant to testify remotely via video-conference from Edmonton.

The accused, facing multiple charges of assault and assault with a weapon, opposed the application, asserting his right to face his accuser in person.

The court dismissed the application, finding that the Crown failed to provide a sufficient evidentiary foundation regarding the complainant's personal circumstances, logistical difficulties, or the proposed remote setup to justify displacing the default requirement for in-person testimony.

The applicant First Nation brought an application for judicial review alleging that the Crown's failure to decide applications for Permits to Take Water (PTTW) for existing hydroelectric dams breached the duty to consult and accommodate.

The Crown subsequently amended the Ontario Water Resources Act to exempt the dams from the PTTW requirement, as they were already regulated under the Lakes and Rivers Improvement Act.

The Divisional Court dismissed the application, finding that the PTTW applications did not trigger the duty to consult because they sought only to continue historical operations without introducing novel adverse impacts.

Furthermore, the legislative amendments were not unconstitutional as they did not remove the sole trigger for consultation, which remained available under the overlapping regulatory regime.

The plaintiff brought an uncontested trial for default judgment against the defendant for defamation and the tort of placing her in a false light, arising from videos posted on social media.

The court found that while the defamation claim failed due to lack of evidence of publication on WhatsApp, the plaintiff established liability for the false light tort because it was reasonably foreseeable the false videos would be shared.

The court awarded the plaintiff $5,000 in general damages and $30,390 in special damages for lost income, plus substantial indemnity costs.

The appellant owner appealed a summary judgment finding it liable to pay a subcontractor directly for amounts owed by the contractor, pursuant to a termination agreement.

The Divisional Court dismissed the appeal on the merits, finding the motion judge made no palpable and overriding error in concluding the owner agreed to pay the subcontractor's outstanding balance.

However, the court set aside the motion judge's award of 24% interest, finding the issue was not properly addressed, and directed the parties to provide further written submissions on the proper calculation of interest.

The moving party, Gaspare Caruso, brought a motion to annul the bankruptcy of 1947755 Ontario Ltd. under s. 181(1) of the Bankruptcy and Insolvency Act.

The assignment in bankruptcy had been made by John Hanna Nissan amidst a protracted dispute over corporate control.

The court found that the corporation was not insolvent at the time of the assignment, as its assets exceeded its liabilities and it could have met its obligations with a modicum of effort.

Furthermore, the court held that the assignment was an abuse of process, strategically timed to avoid scheduled examinations in the ongoing litigation.

The motion to annul the bankruptcy was granted.

The appellant father appealed a summary judgment order finding his two children in need of protection and placing them in the custody of their maternal aunt.

The father argued ineffective assistance of counsel, procedural unfairness, and errors in fact-finding regarding his sobriety and history of domestic violence.

The Divisional Court dismissed the appeal, finding that the ineffective assistance claim failed because former counsel was not given notice, there was no procedural unfairness, and the motion judge's factual findings were supported by the evidence and free of palpable and overriding error.

The court held that the children required stability and permanency, which the current custodial arrangement provided.

Following two summary judgment motions in a family law proceeding, the respondent sought approximately $115,000 in costs based on offers to settle.

The applicant argued the amount was grossly excessive and disproportionate.

The court applied the principles of proportionality, fairness, and reasonableness, significantly reducing the claimed hours and disallowing time docketed by an unidentified law clerk.

The respondent was awarded a total of $30,000 in costs inclusive of disbursements and HST.

The moving party condominium corporation sought an extension of time to appeal a decision of the Condominium Authority Tribunal (CAT) regarding an accessible parking space dispute.

The corporation had initially brought an application for judicial review, which was dismissed for being the incorrect route, causing a delay in filing the appeal.

The Divisional Court applied the test for extending time to appeal, finding that the corporation had a bona fide intention to appeal, the delay was reasonably explained by counsel's error in choosing the appeal route, there was no significant prejudice to the respondent, and the proposed appeal had sufficient merit.

The motion to extend time to appeal was granted.

The appellant appealed the dismissal of his application under the Partition Act for the sale of a property registered solely in the respondent's name.

The application judge had dismissed the claim, finding on a paper record that the funds advanced by the appellant were a loan, not an investment giving rise to a trust interest.

The Divisional Court allowed the appeal, holding that the application judge erred in law by assessing credibility on material facts in dispute without directing a trial to hear viva voce evidence.

The judgment was set aside and a trial of the whole application was ordered.

The applicant sought judicial review of a decision by the Human Rights Tribunal of Ontario denying her request to reactivate her human rights application.

The request was made 40 days late due to the inadvertence of her counsel.

The Tribunal applied the strict test under section 34(2) of the Human Rights Code, requiring a good faith explanation and no substantial prejudice, rather than its broader procedural rules.

The Divisional Court found the Tribunal's decision unreasonable, as it fettered its discretion by refusing to consider prejudice and misapplied its own jurisprudence.

The decision was set aside and remitted to a different Tribunal member.

The mother appealed a motion judge's decision regarding retroactive child support and imputed income.

The motion judge had denied the mother's request for retroactive support prior to October 2019, finding that the father had made payments for airline tickets and a lump sum that offset the amount owed.

The motion judge also imputed an income of $30,000 to the mother and ordered her to pay child support for the child in the father's care.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or exercise of discretion.

The parties advised the court in writing that the matter had been settled.

On consent, the court ordered that the appeal be dismissed without costs to either party.

The applicant husband brought a motion under Family Law Rule 12(6) to sever his claim for divorce from the corollary relief sought by the respondent wife.

The respondent opposed the motion, arguing she would be disadvantaged regarding her claims for the return of jewellery and an interest in property.

The court found that the respondent's true motive was to delay the divorce as leverage for her civil claims, which would not be legally disadvantaged by the severance.

The motion to sever the divorce was granted, and the respondent's cross-motion was dismissed.