Peter A. Daley

Unit owners applied for a compliance order requiring a condominium corporation to call a meeting of owners after receiving requisition forms seeking a vote on proposed alterations to common elements.

The corporation refused to call the meeting, asserting the requisition was invalid because it consisted of multiple counterpart forms and many owners printed rather than cursively signed their names.

The court held that the Condominium Act, 1998 is remedial legislation requiring a liberal interpretation and does not require a requisition to be contained in a single document or signed in cursive writing.

Printed names constitute valid signatures and counterpart documents may collectively form a requisition.

The requisition satisfied the statutory requirement that owners of at least 15 percent of the units request the meeting.

The corporation was ordered to convene the meeting pursuant to ss. 46 and 97(3) of the Act.

Following a jury trial, two offenders were convicted of manslaughter arising from a group swarming attack outside a restaurant that resulted in the victim’s death.

The sentencing judge assessed aggravating factors including the vulnerability of the unarmed victim, the coordinated nature of the attack, the use of golf clubs and a golf club shaft as weapons, and the offenders’ flight from the scene.

Mitigating considerations included the offenders’ youth, limited or absent criminal records, expressions of remorse, and prospects of rehabilitation.

The court rejected submissions that harsh pre‑sentence custody conditions warranted additional mitigation beyond statutory credit.

Applying sentencing principles of proportionality, denunciation, deterrence, and parity, the court imposed identical penitentiary sentences.

Following a global private mediation resolving claims arising from a motor vehicle accident, the plaintiff executed Minutes of Settlement and full and final releases settling long‑term disability and tort claims with two insurers.

Several weeks later the plaintiff attempted to resile from the settlements, asserting she had been fatigued, in pain, and under stress during mediation.

The insurers moved for judgment enforcing the settlements.

The court held that a change of heart or “buyer’s remorse” is not a valid basis to set aside a settlement and found no evidence of duress, incapacity, lack of authority, or unconscionability.

The settlements were therefore enforced and judgment granted in accordance with their terms.

During a jury trial for homicide arising from a restaurant assault, the court considered whether the defence of abandonment should be left with the jury for two accused alleged to be parties to the offence under s. 21 of the Criminal Code.

Applying the Supreme Court’s formulation of the abandonment defence in R v. Gauthier and the “air of reality” test, the court examined whether the evidence could reasonably support findings that the accused intended to withdraw, communicated that withdrawal in a timely and unequivocal manner, and took proportional steps to neutralize their participation.

Evidence from one accused that he attempted to discourage the assault and physically intervened was capable of supporting the defence.

By contrast, the other accused’s single statement discouraging a fight and subsequent inaction did not satisfy the elements of abandonment.

The defence was therefore left with the jury for one accused but not the other.

During a jury trial for homicide-related offences, the accused sought a ruling preventing the Crown from arguing that marks on the deceased’s clothing were footwear impressions attributable to the accused.

The forensic investigator described several impressions on the clothing but did not identify them as footwear impressions and could not match them to the footwear of either accused.

The court held that the Crown’s proposed inference lacked the necessary foundational evidence and would amount to impermissible speculation.

Applying principles governing circumstantial evidence and inference‑drawing, the court concluded that the primary fact that the impressions were caused by footwear had not been established.

Crown counsel was therefore prohibited from inviting the jury to conclude that the impressions were footwear impressions or attributable to the accused.

During a jury trial for homicide, the Crown sought to cross‑examine an accused about a security video depicting two vehicles near the crime scene and to argue in closing that the vehicles belonged to the accused and a Crown witness.

Defence counsel objected, arguing there was no good‑faith basis for the proposed questioning and that the Crown had earlier indicated the video would not be relied upon.

The court found that defence counsel had reasonably relied on the Crown’s stated position and that the Crown’s belief linking the vehicles to the accused was not reasonably supported by evidence.

Allowing the questioning or submissions would create unfair prejudice and invite speculation by the jury.

The court therefore prohibited the Crown from cross‑examining the accused on the video or making submissions linking the vehicles to the accused or the witness.

The applicant sought judicial review of an arbitral award that dismissed a professor for just cause.

The underlying dismissal occurred in 2001, and the arbitral award was issued in 2002.

Due to various procedural steps, adjournments, and a late intervention by the dismissed professor raising jurisdictional arguments, the application did not proceed to a hearing until 2014.

The Divisional Court dismissed the application for extreme delay, finding that relitigating a workplace dispute over a decade later would cause prejudice and bring the administration of justice into disrepute.

The applicant Union sought judicial review of an arbitrator's decision dismissing a grievance concerning the discharge of a disabled worker.

The Union argued it was denied natural justice because the arbitrator refused its counsel access to the employer's plant to observe jobs, and refused to admit Physical Demands Analysis documents as exhibits.

The Divisional Court dismissed the application, finding the arbitrator's discretionary rulings were reasonable, caused no prejudice, and did not result in procedural unfairness.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his complaint that the union breached its duty of fair representation under s. 74 of the Labour Relations Act.

The applicant alleged procedural unfairness during the consultation process and substantive errors in the Board's assessment of the union's investigation into a contracting-out grievance.

The Divisional Court dismissed the application, finding no breach of natural justice and holding that the Board reasonably concluded the union's actions were not arbitrary, discriminatory, or in bad faith.

The Crown sought certiorari and mandamus to review a preliminary inquiry decision that committed two accused to trial for second‑degree murder rather than first‑degree murder and discharged another accused.

The Crown argued the preliminary inquiry judge failed to consider the whole of the evidence and improperly rejected inferences supporting constructive first‑degree murder under s. 231(5) of the Criminal Code based on unlawful confinement.

The reviewing court held that the justice committed a jurisdictional error by failing to address evidence of unlawful confinement of a second victim, which could support first‑degree murder within the same transaction.

Mandamus issued requiring committal of two respondents to trial for first‑degree murder.

The application regarding the third respondent was dismissed because the justice properly applied the limited weighing permitted for circumstantial evidence and committed no jurisdictional error.

The Crown brought a bail review under s. 521 of the Criminal Code seeking to vacate a justice of the peace’s order granting release to an accused charged with numerous firearm and drug offences.

The court found the justice committed errors of law and principle by failing to properly analyze the secondary and tertiary grounds under s. 515(10) and by overemphasizing the proposed supervision plan and sureties.

Considering the strong Crown case, the presence of multiple firearms including one linked to a homicide, drug trafficking evidence, and ongoing connections to criminal associates, the court concluded that the release plan did not adequately address public safety concerns.

Detention was justified on both the secondary ground and the tertiary ground to maintain confidence in the administration of justice.

The accused were tried for fraud over $5,000 arising from a $100,000 loan obtained from private lenders under representations that the funds would be invested in a New Jersey land subdivision project through a corporation.

Evidence showed the investors relied on representations that both accused were partners or officers of the company and that the funds would be invested as described.

The court found the money was not invested as represented and that the accused misrepresented their roles and diverted funds from the corporate account without the investors’ knowledge.

The court rejected the defence of intoxication raised by one accused and found the investors suffered economic deprivation exceeding $5,000.

Both accused were convicted of fraud under s. 380(1)(a) of the Criminal Code.

A family law trial addressing child support and spousal support following an 11‑year marriage with two children, one of whom had significant special needs.

The central issue was the proper income to attribute to each party for support purposes where the payor’s financial disclosure was inconsistent and incomplete.

The court found the payor’s evidence unreliable and imputed income based on averaged business revenues and estimated expenses.

Income was also imputed to the recipient based on limited part‑time work capacity due to caregiving responsibilities.

The court held the recipient was entitled to compensatory spousal support due to economic disadvantage arising from childcare duties and directed further evidence to determine a gross‑up of the payor’s income for support calculations.

The appellant purchaser entered into an agreement to buy a townhouse but failed to close the transaction due to financial difficulties.

The vendor retained the $35,000 paid by the appellant as a forfeited deposit.

The appellant sued for the return of the funds, claiming relief from forfeiture, but the trial judge dismissed the action.

On appeal, the Divisional Court upheld the trial judge's finding that the appellant did not act reasonably and was therefore not entitled to relief from forfeiture.

The appeal was dismissed, with a dissenting opinion arguing that the payments were not explicitly defined as a deposit in the main agreement.

Summitt Energy Management Inc. appealed an Ontario Energy Board order imposing a $234,000 administrative penalty, a compliance order, and restitution to consumers for unfair door-to-door sales practices.

Summitt argued reasonable apprehension of bias, incorrect standard of proof, lack of jurisdiction for restitution, and procedural unfairness.

The Divisional Court dismissed the appeal, finding that the Board's independent legal counsel did not create bias, the proceedings were regulatory (requiring a civil standard of proof), and the Board had broad statutory authority to order restitution.

The plaintiff alleged medical negligence against an orthopaedic surgeon for failing to properly manage and refer a distal biceps tendon rupture in a timely manner, allegedly causing the plaintiff to lose the opportunity for surgical repair.

The court found that the physician diagnosed the condition, advised the patient of treatment options, and offered a referral to a specialist capable of performing the surgery, which the plaintiff declined pending MRI results for other issues.

The court concluded the physician met the applicable standard of care for a referring physician and that the plaintiff's evidence was not credible or reliable.

The court further held that the plaintiff failed to prove causation because there was no expert evidence establishing that earlier surgery would likely have resulted in a better outcome.

The action was dismissed.

The plaintiffs commenced an action against their automobile insurer alleging breach of contract, entitlement to various statutory accident benefits, and damages for bad faith following a 1999 motor vehicle accident.

They sought payment for a proposed medical assessment, vocational training and educational expenses, the cost of a spinal cord stimulator, and damages arising from alleged improper claims handling.

The court found that the plaintiffs failed to establish entitlement to the claimed benefits because the assessments and treatments were not proven to be reasonably required and several claims were not properly submitted or mediated under the applicable Statutory Accident Benefits Schedule.

The court also held that the insurer’s conduct did not constitute bad faith and did not represent a marked departure from ordinary standards of decency.

The action was dismissed in its entirety.

The moving defendants sought summary judgment dismissing a slip and fall action and a municipal cross‑claim arising from an alleged fall on a driveway apron located within a municipal road allowance.

The plaintiff alleged she slipped on ice or snow on the apron crossing a residential driveway.

The homeowners argued they were not occupiers of the municipally owned land and owed no duty of care.

The court held that evidence that the homeowners installed and actively maintained the driveway and treated the apron as an extension of their property could constitute “special circumstances” establishing occupier status under the Occupiers' Liability Act.

Because a full appreciation of the evidence and the novel legal questions regarding driveway apron liability required a full trial record, the summary judgment motion was dismissed.

The applicant union sought judicial review of an arbitration award that held the union was estopped from proceeding with a grievance regarding the contracting out of a position.

The arbitrator had found that the union's conduct led the company to rely on a settlement to its detriment.

The Divisional Court found the arbitrator's findings on estoppel were inconsistent with his earlier factual findings that the company's representative had merely made an assumption about the union's intentions.

The court concluded the arbitrator's decision was unreasonable, quashed the award, and remitted the grievance to a different arbitrator.

The applicant, a young person charged with murder, sought to quash a subpoena compelling him to testify at the preliminary hearing of his separately charged adult co-accused.

The applicant argued the Crown's predominant purpose was to obtain incriminating evidence against him and force him to reveal his defence.

The court found the Crown established the applicant likely had material evidence to give.

Applying the Branch test, the court concluded the applicant failed to demonstrate the Crown's predominant purpose was improper or that there was a real and substantial risk of prejudice to his fair trial rights, given the availability of derivative use immunity.

The application to quash the subpoena was dismissed.