Osborne Godfrey Barnwell

An appeal from a Superior Court judgment was adjourned pending receipt of the trial transcript and Digital Court Recording.

The Court of Appeal determined that it could not properly hear the appeal without these materials and ordered the Registrar to obtain copies for the panel and parties.

The appeal was rescheduled for February 2, 2018, with supplementary factums to be filed by both parties.

The plaintiff sued police for battery, illegal search, wrongful arrest and detention, Charter breaches, and malicious prosecution.

The defendants moved for summary judgment, arguing that all claims except malicious prosecution were statute-barred by the two-year limitation period, and the malicious prosecution claim failed because the criminal proceedings did not terminate in the plaintiff's favour due to his entry into a peace bond.

The court dismissed the claims for battery, illegal search, wrongful arrest, detention, and Charter breaches as time-barred, finding the plaintiff knew of the injury and the appropriateness of a civil action at the time of arrest.

The court also dismissed the malicious prosecution claim, holding that entering into a peace bond does not constitute a termination of proceedings in the plaintiff's favour, and there was no evidence of improper motive by the Crown or police in offering the peace bond.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her complaint against the City of Toronto as an abuse of process, and against her union and its counsel for having no reasonable prospect of success.

The applicant had previously settled her grievance and human rights complaint with the City but later filed a new complaint, alleging she signed the settlement under duress from her union.

The Divisional Court dismissed the application, finding the Adjudicator's decision was reasonable and correct, as the settlement was binding and the allegations of duress did not invalidate it.

The applicant filed a Request for an Order During Proceedings to reactivate his human rights application, which had been deferred pending the resolution of his WSIB claim.

The applicant argued that his legal representative had inadvertently failed to respond to the original deferral request.

The respondent opposed the reactivation, noting that the WSIB proceedings were ongoing and that reactivation could result in inconsistent findings.

The Tribunal denied the request to reactivate, finding no basis to do so while the WSIB process had not yet concluded.

The defendants moved to strike the plaintiff's statement of claim, which alleged a failure to provide a timely letter of reference, for disclosing no reasonable cause of action.

The plaintiff brought a cross-motion to amend the statement of claim to allege that the corporate defendant breached its policy to provide a reference.

The court allowed the amendment and dismissed the motion to strike, finding that the amended pleading sufficiently alleged a breach of the employment contract and related torts.

The applicant requested a reconsideration of a Tribunal decision that dismissed his human rights application as abandoned.

The application had been dismissed after the applicant failed to comply with pre-hearing disclosure rules and failed to respond to a Case Assessment Direction warning of dismissal.

The applicant argued he was trying to secure legal representation and was unaware of who to contact.

The Tribunal found the applicant failed to establish any new facts or other criteria under Rule 26 to justify reconsideration, noting his complete failure to communicate with the Tribunal prior to the deadline.

The request for reconsideration was denied.

The applicant's motion for judicial review of a case management master's decision to recuse herself from construction lien proceedings was dismissed for prematurity.

The respondents sought costs on a substantial indemnity basis, arguing the applicant made reckless attacks on the integrity of a judicial officer.

The Divisional Court awarded costs on a partial indemnity basis, noting the bias issue was not determined on its merits.

The court ordered the applicant to pay $30,000 to the respondent 229 and $3,000 to the respondent St. Clare's.

The plaintiffs moved for summary judgment against the defendants for breach of an Agreement of Purchase and Sale.

The defendants raised five defenses.

The court granted summary judgment on four defenses (unenforceability due to waiver, bad faith, mitigation, and insufficient funds to close a secondary property purchase), finding no genuine issue for trial on these points.

However, a trial of an issue was ordered to determine the foreseeability of the quantum of forfeited deposits related to the secondary property purchase, as there was conflicting evidence regarding the defendants' knowledge of the deposit amounts at the time of contract.

The applicant requested reconsideration of a decision dismissing his human rights application for abandonment and delay.

The application had been dismissed after the applicant failed to file a psychiatrist's report regarding his behaviour at the hearing, despite multiple extensions.

The Tribunal found that the psychiatrist's report eventually filed by the applicant did not comply with the Tribunal's directions, as it failed to address his capacity to participate in the hearing.

The Tribunal rejected the applicant's arguments regarding procedural fairness and delay, and dismissed the request for reconsideration.

The appellant doctor appealed a decision dismissing his summary judgment motion to dismiss the respondent's medical malpractice action as statute-barred.

The respondent suffered severe complications following breast reduction surgery, and the appellant continued to perform ameliorative surgeries for over a year.

The Court of Appeal upheld the motion judge's finding that under s. 5(1)(a)(iv) of the Limitations Act, 2002, the respondent did not know that a legal proceeding would be an appropriate means to seek a remedy until the ameliorative treatments concluded.

The appeal was dismissed.

The respondent requested the dismissal of the applicant's human rights application on various preliminary grounds, including that the allegations were barred by a prior settlement agreement, were out of time, had no reasonable prospect of success, or constituted an abuse of process.

The Tribunal found that some allegations were barred by the settlement agreement and others were out of time without a good faith explanation for the delay.

The Tribunal also dismissed an allegation based on an oral collateral agreement allegedly made at mediation, applying the parol evidence rule.

However, the Tribunal allowed several other allegations to proceed, finding they were not barred by the settlement and had a reasonable prospect of success.

The request to dismiss the application as a whole for abuse of process was denied.

The applicants sought judicial review of two interim decisions of the Human Rights Tribunal of Ontario regarding a workplace discrimination complaint.

The Tribunal had denied the applicants' request to dismiss the complaint for being outside the limitation period, finding that the allegations constituted a series of incidents.

The Divisional Court dismissed the application for judicial review as premature, holding that the Tribunal's decisions were interlocutory and that there were no exceptional circumstances to justify fragmenting the administrative proceedings.

The applicant filed a human rights application alleging discrimination in employment.

The respondents requested the application be dismissed at a preliminary hearing on the basis that the applicant had previously signed Minutes of Settlement and a Final Release and Indemnity regarding her termination.

The applicant argued she signed under duress and did not understand the documents.

The Tribunal found no evidence of duress or lack of understanding, noting she received a severance package exceeding statutory minimums and had union representation.

The Tribunal dismissed the application against the employer as an abuse of process, and dismissed the application against the union and its counsel as having no reasonable prospect of success.

The plaintiff, Unimac, brought a motion to vary previous orders requiring it to post security for costs in favour of the defendant, Metrolinx.

Unimac argued the orders were based on false and misleading evidence regarding the location of a related action, and that new evidence undermined the credibility of a key affidavit.

The Master dismissed the motion, finding that the location of the related action was not material to the original decision and that Unimac could have discovered the true location with due diligence.

The Master also found that the new evidence would not have had an important influence on the original decision.

The applicant sought reconsideration of a decision dismissing his human rights application as abandoned.

The application was filed beyond the one-year limitation period under the Human Rights Code.

The applicant argued the delay occurred because he initially filed a complaint with the Canadian Human Rights Commission in error.

The Tribunal found this did not constitute a good faith explanation for the delay, as the applicant failed to make timely inquiries about the correct forum before the limitation period expired.

The request for reconsideration was dismissed and the application remained dismissed.

The applicant, a police officer, filed a human rights application alleging discrimination based on disability, race, and reprisal against the Police Services Board, the Police Association, and a third-party disability management provider.

At a preliminary hearing, the Tribunal considered the applicant's requests to amend his application, the respondents' requests to dismiss certain allegations for delay and as having been dealt with in a prior proceeding, and the third-party provider's request to be removed as a respondent.

The Tribunal allowed some amendments but denied others due to delay, struck allegations previously dealt with by the OHRC, dismissed several historical allegations for delay as they did not form a series of incidents, and refused to remove the third-party provider as a respondent because its role in adjudicating sick leave and accommodation requests was inextricably linked to the applicant's employment.

The respondents brought a request for an order to dismiss the human rights application, alleging that the applicant abused the Tribunal's process by disclosing anonymized student data to the Ontario Human Rights Commission (OHRC).

The data had been produced by the respondents pursuant to a prior disclosure order.

The Tribunal held that disclosing the information to the OHRC, which has a statutory right to intervene in proceedings, did not breach the implied undertaking rule or the Tribunal's rules on document use.

The respondents' request to dismiss the application or exclude the evidence was denied, though a confidentiality order was issued to protect the raw data.

Application and cross‑application concerning the validity of a life insurance change‑of‑beneficiary form executed shortly before the insured’s death.

The applicant sought a declaration that the 2011 form reallocating most of the insurance proceeds to her was valid, or alternatively rectification of the form.

The court held the form was not a valid declaration under the Insurance Act because the allocation percentages were altered after signing and the applicant failed to prove the insured signed the form as altered.

The court also found numerous suspicious circumstances surrounding the preparation of the document, rebutting the presumption that the insured knew and approved its contents.

The applicant failed to establish knowledge and approval or that the form reflected the insured’s true testamentary intentions.

The applicant requested leave to amend his human rights application to allege that a City of Waterloo by-law violated the Human Rights Code.

The Tribunal denied the request, finding that the proposed amendment did not assert any basis upon which the by-law could be found to violate the Code, as it did not link the alleged discrimination to any protected ground.

The Tribunal also ordered that the applicant's two applications be consolidated and heard together, as they involved the same parties and essentially the same issues.

The applicant requested that a clinical social worker be qualified as an expert witness in quantitative and qualitative data analysis to provide an opinion on data disclosed by the respondents.

The respondents objected, arguing the proposed witness lacked the necessary scientific research background and impartiality.

The Tribunal denied the request, finding that the proposed witness had previously acted as an advocate for the applicant, had an ongoing relationship with the applicant's family, and lacked the independence and impartiality required of an expert witness.