Paul David McCutcheon

The Landlord sought leave to appeal an arbitration award concerning the rent reset for a 99-year ground lease, and alternatively, to set aside the award for excess of jurisdiction.

The arbitration tribunal had valued the "Demised Premises" at $63.3 million, while the Landlord argued for $95 million.

The court granted leave to appeal but dismissed the appeal, finding no error in the Majority's interpretation of the lease or its valuation mandate.

The court also dismissed the application to set aside the award, holding that the Landlord's arguments were an attempt to re-litigate the merits under the guise of a jurisdictional challenge.

The Vendor successfully moved for summary judgment, terminating an agreement of purchase and sale due to the Purchasers' failure to pay a deposit by the stipulated deadline.

The court found that a subsequent alleged verbal agreement to revive or amend the contract was invalid, citing "time is of the essence" and "all amendments in writing" clauses within the agreement, as well as the Statute of Frauds.

Relief from forfeiture of the $1,000,000 deposit was denied, as the deposit was not deemed disproportionate to the purchase price and no unconscionability was established.

The Purchasers' cross-motion for specific performance and motion for a certificate of pending litigation were dismissed.

The appellants appealed the dismissal of their action for damages arising from a municipal tendering process and termination of an agreement of purchase and sale.

The trial judge found that while the respondent Town breached its tendering process by accepting a non-compliant bid, the appellants failed to demonstrate they would have been awarded the contract.

The appellants did not meet their burden of proving on a balance of probabilities that the contract would have been awarded to them, as the trial judge found it more probable the Town would have re-tendered.

The Court of Appeal upheld the trial judge's decision, finding it was open to the Town to reject all bids and re-tender with different specifications.

The agreement of purchase and sale was also properly terminated in good faith for legitimate business reasons.

The plaintiffs sued the Town of Orangeville for breach of contract related to a biosolids disposal tender and an agreement of purchase and sale for a storage facility.

The court found the Town breached "Contract A" by accepting a non-compliant tender bid from a third party (Entec) but dismissed the plaintiffs' claim for lost profits (Contract B) because they failed to prove they would have been awarded the contract.

The court also found the Town validly exercised a termination clause in the Agreement of Purchase and Sale, dismissing the plaintiffs' claim for damages related to the property sale.

The Town's counterclaim for the return of the deposit was granted.

This decision addresses costs following the dismissal of the applicants' motion for an interlocutory injunction.

The respondents, including EACOM Timber Corporation, Northshore Forest Inc., Vermilion Forest Management Company Ltd., and two government Ministries, did not seek costs.

The applicants requested that no costs be ordered against them.

The court, noting the lack of costs requests from the respondents and the applicants' position, ordered that all parties bear their own costs for the interlocutory injunction motion.

The applicants sought an interlocutory injunction to halt logging, road building, and aerial spraying in the Benny area, asserting a lack of meaningful consultation and consent regarding their Aboriginal and Treaty rights.

The court applied the three-part test for an interlocutory injunction, finding that the Crown's duty to consult with the Atikameksheng Anishnawbek First Nation (AAFN) had been met through extensive engagement, which led to the approval of remedial measures by the AAFN Chief and Council.

The applicants failed to demonstrate a serious issue to be tried or irreparable harm, as their claims were general and the Crown's protective measures were deemed ample.

Furthermore, the balance of convenience favoured the respondents, given the significant economic impact and job losses that an injunction would cause.

The court also clarified that the duty to consult is owed to the collective Aboriginal group, not individual members, and rejected claims of additional hereditary clan leader reserves under the Robinson-Huron Treaty of 1850.

The motion for an interlocutory injunction was dismissed.

The appellants appealed a summary judgment decision and sought leave to introduce fresh evidence.

The Court of Appeal dismissed the fresh evidence motion, noting it did not meet the test and was not needed to argue the appeal.

On the main appeal, the appellants argued that summary judgment was premature due to missing evidence.

The Court rejected this, finding the appellants failed to take steps to compel production and did not put their best foot forward.

The motion judge correctly applied the tests for summary judgment.

The appeal and leave to appeal costs were dismissed, with costs of the appeal fixed at $85,000.

The Burnbrae defendants brought a motion for summary judgment to dismiss the plaintiffs' claims against them.

The plaintiffs, who were competitors in the egg industry, alleged that Burnbrae conspired with others to drive them out of business by supplying deficient eggs, misusing confidential information, and interfering with contractual relations.

Applying the new summary judgment framework from Hryniak v. Mauldin, the court found no evidence to support the plaintiffs' sweeping allegations against Burnbrae.

The court concluded that Burnbrae's actions were legitimate competitive behavior and dismissed the action against the Burnbrae defendants.

The plaintiff sought approximately $2.6 million in damages against a contractor and an acrylic sheet manufacturer arising from alleged defects in the design, manufacture, and installation of a skylight system for a horse riding arena.

The plaintiff alleged negligent design, negligent manufacture of acrylic sheets, negligent misrepresentation in product literature, and spoliation of evidence.

After a lengthy trial, the court found no negligence or breach of contract by the contractor and no negligence in the manufacture of the acrylic sheets by the manufacturer.

Although the manufacturer should have disclosed certain test results regarding light transmittance, the plaintiff failed to prove causation.

The court further held the plaintiff fundamentally breached the contract and was contributorily negligent by refusing to install an automatic controller and by failing to implement recommended ventilation and heating measures, and also failed to mitigate its losses.

At the commencement of a lengthy construction dispute trial, the defendants sought to set aside an earlier bifurcation order so that liability and damages could be tried together, while the plaintiff moved to strike the defendants’ jury notice.

The court exercised its inherent jurisdiction to manage the trial process and set aside the earlier order, finding that trying all issues together would avoid multiplicity of proceedings and that evidentiary overlap justified a single trial.

The court also held that the case involved exceptionally complex factual, technical, and legal issues, including numerous expert reports, extensive documentary evidence, multiple causes of action, crossclaims, and potential apportionment under a Pierringer agreement.

Given these complexities, the court concluded that justice would be better served by a judge-alone trial rather than a jury.

The jury notice was therefore struck and the matter ordered to proceed on all issues before a judge.

The appellant association appealed a decision finding that the process for renewing the appointments of Deputy Judges of the Small Claims Court does not infringe the principles of judicial independence.

The Court of Appeal dismissed the appeal, applying the Supreme Court of Canada's decision in R. v. Valente.

The Court held that a reasonable and well-informed observer would conclude that the Deputy Judges and the Small Claims Court are sufficiently independent, as the renewal discretion rests with senior judicial officers rather than the Executive.

The successful defendant sought substantial indemnity costs following summary judgment motions and the dismissal of the plaintiffs’ claims, arguing the allegations were akin to accusations of fraud and were unsubstantiated.

The plaintiffs argued that substantial indemnity costs are reserved for rare and exceptional cases involving reprehensible litigation conduct.

The court held that although the defendant succeeded on the motions, the plaintiffs’ conduct was not reprehensible and their cross‑motion was not unreasonable.

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

The defendant was awarded $150,000 in costs for the motions and the action.

The appellant racetrack owner refused to permit the respondent to race his horses at its tracks unless he signed an access agreement.

The respondent refused and sought a declaration from the Ontario Racing Commission (ORC) that he could not be required to sign the agreement.

The ORC dismissed the application, but the Divisional Court found the ORC's decision unreasonable.

On appeal, the Court of Appeal held that the ORC's decision was reasonable, as the access agreement did not deny the respondent an opportunity to be heard before the ORC, nor did it give the appellant absolute unfettered power to arbitrarily exclude him.

The appeal was allowed and the ORC's decision restored.

The applicant, a licensed standardbred horse trainer and owner, sought judicial review of an Ontario Racing Commission (ORC) decision that upheld Woodbine Entertainment Group's (WEG) refusal to allow him to enter horses to race unless he signed an Access Agreement.

The Divisional Court held that while WEG could impose track rules and require an Access Agreement, the ORC acted unreasonably in permitting WEG to insist on terms that purported to give WEG absolute unfettered power to exclude licensed participants without fault or procedural fairness.

The application for judicial review was granted in part, prohibiting WEG from excluding the applicant's horses solely for refusing to sign the current Access Agreement.

The applicant applied for judicial review of the government's response to the recommendations of the Deputy Judges Remuneration Commission.

The Commission had recommended significant increases to the per diem rate for deputy judges.

The government accepted the initial increase for 2005 but rejected the subsequent annual increases, substituting lower increases based on economic conditions and public sector compensation trends.

The Divisional Court dismissed the application, finding that the government's response met the constitutional standard of rationality as it articulated legitimate reasons based on a reasonable factual foundation and respected the commission process.

The applicant race track sought judicial review of an Ontario Racing Commission (ORC) decision ordering it to allow the respondent owners' horses to enter races.

The race track had indefinitely banned the horses after another horse trained by the same trainer tested positive for a banned performance-enhancing drug, despite the owners' horses testing negative and the owners having unblemished records.

The Divisional Court dismissed the application, finding the ORC's decision reasonable.

The ORC properly applied the burden of proof, considered relevant evidence, and correctly balanced the race track's private contractual rights against the public interest in fairness and the integrity of horse racing.

The applicant, a standardbred owner, sought an interim stay of a suspension imposed by Woodbine Entertainment Group (WEG) after his horses tested positive for EPO, a performance-enhancing drug.

The suspension prevented him from nominating horses for WEG stakes races.

The Ontario Racing Commission denied the interim relief, finding that while there was a serious issue to be tried, the applicant failed to establish irreparable harm, as the harm was a result of his own business decision to retain the horses despite the suspension.

The balance of convenience heavily favoured WEG's right to protect the integrity of its racing product.

In a separate matter, the Commission upheld a $1,500 fine against a standardbred licensee but reduced his suspension to 13 days.

The applicant First Nations sought judicial review to quash a Notice of Completion of an Environmental Study Report regarding the transfer of the Seaton lands by the Ontario Realty Corporation.

The applicants argued the Crown breached its constitutional and statutory duties to consult them about potential aboriginal burial sites on the lands.

The Divisional Court dismissed the application, finding no constitutional duty to consult because the applicants had surrendered their rights to the lands under the 1923 Williams Treaties.

The court also held that the statutory consultation process under the Environmental Assessment Act was procedurally fair, noting the broad nature of the assessment and the effective involvement of the Founding First Nations Circle.

The Attorney General appealed a decision finding that the Order-in-Council process for setting the remuneration of Small Claims Court deputy judges violated the principle of judicial independence.

The Court of Appeal held that deputy judges are entitled to an independent, effective, and objective process for determining their remuneration, and that the current purely political Order-in-Council process fails to meet this constitutional standard.

However, the Court allowed the appeal in part, finding that the application judge erred in mandating a specific commission model, and gave the government four months to establish a constitutionally compliant process.

The appellants sought to perfect an appeal of a trial judge's order directing a corporate audit under the Ontario Business Corporations Act, despite a previous order by the Divisional Court denying an extension of time to appeal on the basis that the appeal lacked merit.

The appellants argued they perfected the appeal to pre-empt the Registrar from dismissing it for delay after the trial judge's order was finally entered.

The court quashed the purported perfection of the appeal, finding no change in circumstances to reconsider the prior finding that the appeal was devoid of merit, but granted the appellants an extension of time to appeal the previous order denying the extension.