Patricia C. Hennessy

Following a successful appeal that certified a class proceeding after the appellant re-cast its case, the court determined the costs of the appeal and the motion below.

The appellant was awarded $45,000 for the appeal as the successful party.

However, because the appellant completely re-formulated its case on appeal, prejudicing the respondent at the motion stage, the court set aside the motion judge's $200,000 costs award to the respondent and ordered that neither party receive costs for the motion below.

The parties consented to an order fixing the costs of the appeal.

The court ordered the appellants to pay $15,000 in costs to the respondent.

The appellants appealed a decision of the Ontario Securities Commission finding they perpetrated a fraud relating to securities and breached their duties as investment fund managers.

The appellants argued the Commission lost jurisdiction when a single commissioner proceeded with the sanctions hearing after the other commissioner's appointment expired.

The Divisional Court dismissed the appeal, holding that the Statutory Powers Procedure Act permitted the Commission to override quorum requirements to proceed expeditiously.

The Court also upheld the Commission's findings of fraud, concluding that subjective awareness of the intended consequences could be inferred from the appellants' actions, and affirmed the sanctions imposed, including significant disgorgement orders.

The appellants appealed an order granting the Ottawa Police Association a conditional representation order under Rule 12.08 of the Rules of Civil Procedure.

The underlying action involved 74 police officers who transferred from the OPP to the Ottawa Police Services Board and alleged negligent misrepresentation regarding their pension transfers.

The Divisional Court dismissed the appeal, finding that Rule 12.08 does not require an action to benefit all members of an association, nor is it limited to collective actions.

The court upheld the motion judge's findings on common issues and preferable procedure, confirming that a conditional order to substitute an appropriate representative plaintiff was permissible.

The plaintiff appealed the dismissal of its motion to certify a class action against the defendant, which manages Ontario's electronic land registry system.

The proposed class action alleged that the defendant's database constituted copyright infringement of plans of survey.

On appeal, the plaintiff recast its case by revising the class definition and common issues.

The Divisional Court allowed the appeal, finding that the plaintiff could recast its case absent non-compensable prejudice to the defendant.

The court held that the motion judge erred in requiring evidence that two or more persons were desirous of pursuing the claim to satisfy the identifiable class criterion.

The revised class definition and common issues met the certification criteria under the Class Proceedings Act, 1992.

The accused was charged with sexual assault and invitation to sexual touching involving a child who was between four and six years old at the time of the alleged incidents.

The complainant described three incidents involving fellatio and digital penetration occurring at a park, a bedroom, and a bathroom while the accused lived with her mother.

The accused denied the allegations and suggested a third-party suspect, but the court rejected that theory after reviewing the evidence.

Applying the credibility framework in R. v. W.(D), the court found the accused’s evidence inconsistent and implausible and accepted the complainant’s testimony as credible and reliable.

The court concluded beyond a reasonable doubt that the accused committed the offences.

The appellant, the Municipal Property Assessment Corporation (La Société d'évaluation foncière des municipalités), was ordered to pay costs to the respondents in the amount of $2,000.

The costs endorsement was rendered in writing by a panel of the Divisional Court.

Following a successful application declaring that an insurer owed a duty to defend, the applicant sought costs of $23,228.50 on a substantial indemnity basis.

The respondent did not dispute the applicant’s responsibility to fund its own defence but challenged the number of hours claimed.

The court considered the principles governing costs under Rule 57 and the Court of Appeal guidance emphasizing fairness and reasonableness rather than full indemnification.

The court found some duplication of effort and reduced the claimed amount.

Costs were fixed at $20,000 inclusive of HST plus disbursements.

The appellant property assessment corporation appealed a decision of the Assessment Review Board that reclassified a property from industrial to commercial.

The property was used by a small welding business that primarily sold raw materials and custom-made propane cylinder cages without a mass production line.

The Divisional Court applied the reasonableness standard of review and upheld the Board's decision, finding that the Board's reliance on dictionary definitions and Wikipedia to interpret 'manufacturing' as requiring mass production was reasonable in the absence of a statutory definition.

The landlord appealed a Landlord and Tenant Board order requiring it to pay a rent differential to a former tenant who vacated due to a bedbug infestation.

The Board found that the landlord's failure to address the infestation in the common hallway substantially interfered with the tenant's reasonable enjoyment and induced him to move out.

The Divisional Court dismissed the appeal, holding that the Board's interpretation of 'induced' to include a failure to act was reasonable and consistent with the tenant protection objectives of the Residential Tenancies Act.

The applicant sought judicial review of two decisions by the Ontario Judicial Council dismissing his complaints against a judge acting as a public inquiry commissioner.

The Council had dismissed the complaints on the basis that they concerned the judge's decision-making duties, which are subject to judicial review, rather than judicial misconduct.

The Divisional Court dismissed the application, finding the Council's decisions were reasonable and that the application was barred by unreasonable delay of up to 69 months.

The applicant sought a declaration that the respondent insurer owed it a duty to defend and indemnify in a slip-and-fall action brought by customers allegedly injured in the applicant’s store.

The applicant had been named as an additional insured under a contractor’s commercial general liability policy covering janitorial operations.

The insurer refused to defend, arguing the pleadings alleged independent negligence by the occupier and that issue estoppel applied because earlier litigation had rejected contractual indemnity claims against the contractor.

The court held that issue estoppel did not apply because the earlier proceedings addressed contractual indemnity rather than the insurer’s duty to defend.

Applying the pleadings rule, the court concluded the factual allegations potentially fell within policy coverage because the incident arose from janitorial operations, thereby triggering the duty to defend.

The insurer was ordered to indemnify the applicant for defence costs incurred in the underlying action.

The appellant appealed a motion judge's decision striking his statement of claim.

The appellant sought an order from the Ontario court quashing a British Columbia Supreme Court decision that declared him a vexatious litigant, and sought interim compensation for lost teaching salary under a BC collective agreement.

The Divisional Court dismissed the appeal, agreeing that the claim disclosed no cause of action and that Ontario courts have no jurisdiction to overturn a BC court order or remedy a violation of a BC collective agreement.

The court found no real and substantial connection to Ontario.

The accused brought a Charter motion seeking exclusion of drug evidence seized during a warrantless vehicle search following his arrest for drug trafficking.

The defence argued that late disclosure of additional confidential informant tips undermined police credibility and that the Crown had failed to establish reasonable and probable grounds for arrest.

The court held that although disclosure had been late and piecemeal, any prejudice was cured by an adjournment and there was no evidence of bad faith.

Applying the test in Debot for informant-based police action, the court found the confidential source reliable and the information sufficiently corroborated through police investigation.

The court concluded that police had reasonable and probable grounds to arrest and that the search incident to arrest was lawful.

The accused was charged with sexual assault and sexual interference involving a three‑year‑old child in a campground washroom.

The Crown relied primarily on the child’s out‑of‑court statements alleging touching of the penis and buttocks.

The accused admitted touching the child’s buttocks briefly but denied touching the penis or acting for a sexual purpose, asserting he had intended to help the child with his pyjamas.

Applying the credibility analysis in R. v. W. (D.), the court found significant risk that the child’s statements were influenced by parental reactions and concluded the Crown failed to prove beyond a reasonable doubt that the touching was sexual in nature or for a sexual purpose.

The accused was acquitted of sexual assault and sexual interference but convicted of the included offence of common assault for the non‑consensual touching.

The accused, a physician, was charged with one count of sexual assault against his employee.

The Crown alleged multiple incidents of unwanted touching and attempted kissing in the workplace, set against a backdrop of admitted sexual harassment.

The court applied the W.(D.) framework to assess credibility, rejecting the accused's denials as implausible and inconsistent.

Finding the complainant's evidence credible and corroborated in part by other witnesses, the court concluded that at least one incident of sexual assault—rubbing his groin against her leg—was proven beyond a reasonable doubt.

A conviction was entered.

The father appealed a child protection order declaring the child a Crown ward with no access and sought placement of the child with proposed caregivers under a supervision order.

The appellant argued that the trial judge misapprehended evidence regarding the caregivers’ ability to care for the child and erred in concluding that continued parental access was not in the child’s best interests.

Applying the standards of correctness and palpable and overriding error, the court found ample evidence supporting the trial judge’s findings, including concerns about the proposed caregiver’s health, past parenting difficulties, and the risks associated with parental access.

The trial judge properly weighed the competing placement proposals and emphasized the importance of permanency for a child who had been in care since birth.

The appeal was dismissed.

The responding spouse moved for a final order enforcing a settlement allegedly reached through correspondence between counsel resolving multiple family law issues including spousal support, property division, and possession of the matrimonial home.

The applicant spouse argued that the draft Minutes of Settlement should also include a term requiring the respondent to designate her as an irrevocable beneficiary under his group life insurance policy.

The court held that the correspondence exchanged between counsel constituted a complete and binding settlement agreement as of March 25, 2013, and that the life insurance term had never been negotiated or agreed upon.

The court rejected the attempt to insert additional terms into the settlement and held that it lacked authority under s. 34 of the Family Law Act to add such a provision to the final order.

The settlement was therefore enforced as reflected in the correspondence, excluding the life insurance requirement.

The accused brought a motion seeking a stay of proceedings for alleged breaches of s. 7 of the Charter arising from late disclosure and alleged refusal to provide information relating to a proposed third-party suspect.

The late disclosure involved photographs and notes that had not been transmitted through the police forensic database to the Crown and defence due to an inadvertent failure in the evidence transfer process.

The court held that late disclosure alone does not establish a Charter breach and that the accused must demonstrate prejudice affecting the ability to make full answer and defence.

As no prejudice or abuse of process was proven and the requested investigative material relating to a third party was speculative and unsupported by evidence, the court found no violation of s. 7.

The motion for a stay of proceedings was dismissed.

The accused, charged with robbery, brought applications for a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

The total delay from the date of arrest to the anticipated end of trial was 25 months.

The court attributed significant portions of the delay to the Crown, including late disclosure of a 9-1-1 audio recording and failure to expedite scheduling.

Finding that the delay was unreasonable and that the accused suffered real prejudice from restrictive bail conditions, the court granted the applications and stayed the charges.