Michelle L. Kropp

The appellant, a provincial women's softball association, appealed a decision ordering it to grant membership to the respondent local baseball association.

The respondent's application had been denied based on operational rules and concerns about player poaching, despite meeting the mandatory membership criteria set out in the appellant's by-laws.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the by-laws.

The court affirmed that the appellant could not use operational rules or unwritten policies to deny membership to an applicant that met the express by-law criteria.

The applicant, a local baseball and softball association, sought a declaration compelling the respondent, a provincial softball association, to grant it membership.

The respondent had denied the applicant's membership applications based on operating rules not contained in its by-laws.

The court found that the applicant had standing as a complainant under the Not-for-Profit Corporations Act, met the membership criteria set out in the respondent's by-laws, and that the respondent had no discretion to deny membership based on criteria outside its by-laws.

The application was granted.

The applicant sought judicial review of a 9-month membership suspension imposed by a not-for-profit pickleball organization.

The respondent raised a preliminary jurisdictional challenge.

The Divisional Court dismissed the application, finding it lacked jurisdiction because the organization was not exercising a statutory power under the Judicial Review Procedure Act.

The court noted that the Not-for-Profit Corporations Act regulates internal affairs but does not render them subject to judicial review.

Furthermore, the private dispute did not have a sufficient public dimension to warrant judicial review.

The appellant developer appealed the dismissal of its application to enforce a restrictive covenant limiting the size of ancillary buildings on a lot purchased by the respondents.

The covenant expired before the appeal was heard.

The Court of Appeal dismissed the appeal on the merits as moot, finding no community interests or public importance to justify hearing it.

However, the Court granted leave to appeal costs, finding the application judge erred in awarding substantial indemnity costs to the respondents based on their offer to settle under Rule 49.10(7).

The costs award below was reduced to $20,000.

The appellant abandoned the appeal, leaving only the respondent's claim for costs of the appeal to be determined.

The court found that the appellant's expenditures on legal advice were reasonably incurred and declined to award costs on a substantial indemnity basis.

Following the approach of the judge below, the court fixed the respondent's costs at $1,500.00 all-inclusive, representing 70 percent of legal fees on a partial indemnity basis and 100 percent of disbursements.

No order was made as to costs of the attendance on the hearing date.

The appellant father appealed a Superior Court decision dismissing his motion to change custody of a 12-year-old child.

The original custody order was made on consent to the mother in 2007.

The father argued that a psychological report ordered under the Children's Law Reform Act established a material change in circumstances affecting the child.

The Court of Appeal upheld the dismissal, finding that while the report documented parental conflict and the mother's anger negatively impacting the child, the continuation of parental conflict does not constitute a material change in circumstances.

The court noted that the mother had taken reasonable steps to address the identified issues, including enrolling in parenting programs and increasing the father's time with the child.

The appellant challenged her father's will and an inter vivos transfer of his house to the respondent, alleging undue influence.

The trial judge rejected the claim.

On appeal, the appellant argued that the relationship between the testator and respondent gave rise to a presumption of undue influence that the respondent failed to rebut.

The Court of Appeal dismissed the appeal, holding that the rebuttable presumption of undue influence applies only to inter vivos transactions, not testamentary gifts.

In testamentary matters, the party attacking the will bears the onus of proving undue influence on a balance of probabilities.

Although the trial judge erred in conflating the two tests, this error did not affect the reasonableness of his conclusion that no undue influence occurred, as his findings were firmly rooted in the evidence.

The appellant husband appealed a trial judge's decision regarding the ownership of two Mexican condominiums purchased with funds contributed by both spouses.

The appellant claimed he held title to the properties through company shares on resulting trust for the wife in respect of half their value, seeking this arrangement because the properties had declined in value since separation, which would benefit him in the equalization calculation.

The trial judge rejected the resulting trust claim, finding the presumption had been rebutted based on all the evidence.

The Court of Appeal dismissed the appeal and awarded costs to the respondent.

The moving party, William Watters, sought a stay of judgment pending his application for leave to appeal to the Supreme Court of Canada.

Watters was a director and shareholder of a franchisee that operated a Cora restaurant and had given a personal guarantee of the franchisee's indebtedness.

The motion judge granted summary judgment against Watters on the guarantee in the amount of $117,000 and dismissed his counter-claim as statute-barred.

The Court of Appeal dismissed Watters' appeal but allowed Cora's cross-appeal regarding the amount owing.

Watters then sought a stay pending leave to appeal to the Supreme Court of Canada.

The motion was dismissed on the grounds that Watters failed to demonstrate a serious issue of national importance, irreparable harm, or that the balance of convenience favoured a stay.

The appellant, a disabled former spouse, appealed a motion judge's order reducing her spousal support from $1,500 to approximately $800 per month.

The motion judge had found a material change in circumstances based on the respondent's adoption of his new wife's children, his deteriorating health, and his new wife's inability to work.

The Divisional Court allowed the appeal, finding that the motion judge made palpable and overriding errors of fact regarding the respondent's health and income, and erred in law by failing to apply the 'first-family-first' principle to the respondent's voluntary assumption of new financial obligations.

The original spousal support order was restored.

The parties separated after a seven-year unmarried relationship.

The trial judge found the respondent had established an unjust enrichment claim regarding the home owned by the appellant, concluding there was a joint family venture, and awarded him $86,500.

The appellant appealed, arguing the trial judge erred in dismissing her retroactive child support claim and in finding a joint family venture.

The child support ground was abandoned during the hearing.

The Court of Appeal dismissed the appeal on the constructive trust claim, finding the trial judge's conclusions on unjust enrichment, joint family venture, and the proportionate damages award were supported by the evidence.

The appellant son appealed a judgment setting aside the transfer of his mother's home to him based on non est factum and undue influence, and dismissing his counterclaim for equitable remedies.

The Court of Appeal upheld the trial judge's findings, noting the mother's limited English, recent widowhood, and lack of independent legal advice.

The counterclaim was properly dismissed due to the appellant's lack of clean hands and prematurity.

The appeal and a related motion were dismissed with costs.

The appellant pig farm applied to expand its operations but was denied minor variances from a municipal zoning by-law that enforced minimum distance separation (MDS II) guidelines.

The appellant applied to the Normal Farm Practices Protection Board, which held it had jurisdiction and exempted the appellant from the doubling factor of the MDS II guidelines.

The Divisional Court overturned this, finding the Board lacked jurisdiction over zoning by-laws.

On appeal, the Court of Appeal held that the Board does have jurisdiction to consider zoning by-laws under the Farming and Food Production Protection Act.

However, applying a reasonableness standard of review, the Court found the Board's decision unreasonable because it directly contradicted the mandatory provincial MDS II guidelines, violating section 9 of the Act.

The appeal was dismissed.