Peter B. Hockin

A construction contractor brought a motion seeking to stay its own court action so that the parties’ dispute over project delays and asbestos-related issues could proceed under the arbitration provisions contained in a CCDC-2 construction contract.

The defendant argued the motion was brought too late and that the contractual dispute resolution process had been discharged.

The court held that although s. 7 of the Arbitration Act, 1991 did not apply because the moving party had commenced the action, the court retained authority under s. 106 of the Courts of Justice Act to stay the proceeding.

Given the strong policy favouring arbitration and the parties’ contractual agreement to resolve disputes through the contract’s dispute resolution process culminating in arbitration, the court exercised its discretion to stay the action.

Issues regarding delay or compliance with contractual timelines were matters for the arbitrator.

The plaintiff appealed an order of a Master dismissing her action for delay following a status hearing.

The action arose from the suspension of her nursing licence, allegedly due to a flawed report by the defendant physician.

The Master had applied a rigid two-part test, finding the plaintiff failed to provide an acceptable explanation for the delay.

The Divisional Court allowed the appeal, holding that the Master erred in principle by failing to apply a contextual approach and by ignoring the broader litigation history, including a companion case that resolved a key issue regarding document admissibility.

The order dismissing the action was set aside.

The plaintiffs brought a motion under Rule 30.02(2) of the Rules of Civil Procedure seeking production of a statement prepared by a property manager shortly after a motor vehicle accident on a commercial parking lot.

The statement had been created following the accident after the property manager contacted the insurer and an adjuster and anticipated litigation.

The court held that litigation privilege attached because the dominant purpose of the investigation and statement was to prepare for potential litigation and assist the employer’s defence.

The court further held that privilege was not waived when the witness reviewed the statement prior to her examination for discovery.

The motion for production was therefore dismissed.

The plaintiff appealed an order of a motions judge that set aside a Master's order declaring the defendants had waived solicitor/client privilege.

The defendants had sought to amend their statement of defence, filing an affidavit blaming their former solicitor for errors, which the Master found constituted a waiver of privilege.

The Divisional Court allowed the appeal, finding that the motions judge failed to apply the proper standard of review and erred by attempting to case manage the sequence of motions after confirming the Master's finding of waiver.

The Master's order was restored.

The applicant sought judicial review of the Ontario Energy Board's Demand Side Management guidelines, arguing they were improperly adopted without a hearing and were binding on parties.

The Board, supported by intervenors, brought a motion to quash the application as moot.

The Divisional Court granted the motion to quash, finding that the guidelines were not binding, as evidenced by subsequent rate hearings where the Board departed from them and an affidavit from Board counsel.

The court declined to exercise its discretion to hear the moot application, noting the applicant could challenge the guidelines in future rate proceedings.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they discriminated against the respondents, two Black men, by asking them for identification in a lawyers' lounge.

The Divisional Court quashed the Tribunal's decision, finding no evidence of differential treatment or a causal nexus to race.

The Court held that the Tribunal improperly reversed the burden of proof by requiring the applicants to provide a non-discriminatory explanation for routine identification checks without the respondents first establishing a prima facie case of discrimination.

The applicant sought certiorari to quash a decision of a provincial court judge who assumed jurisdiction over sentencing after the original judge who received the guilty pleas became ill.

The issue was whether jurisdiction could be transferred under s. 669.2 of the Criminal Code where the original judge was expected to return within a reasonable time.

The court held that the lower court erred by treating the provision as a case management tool and assuming jurisdiction despite a reasonable expectation that the seized judge would return shortly.

Because the statutory requirement that the original judge be unable to continue was not established, jurisdiction should have remained with the judge who accepted the guilty pleas.

The impugned order was quashed.

The plaintiff software company brought a motion seeking injunctive relief prohibiting the defendants from marketing competing software allegedly derived from the plaintiff’s proprietary source code and confidential information.

The motion followed earlier interlocutory orders requiring both parties to deposit their source code and select an independent expert to conduct a comparative analysis to determine whether copyright infringement had occurred.

The court found the original injunction resembled a quia timet order granted on speculative evidence, with no proof of actual or imminent harm.

The defendants had repeatedly proposed a neutral comparison of the competing source codes, including permitting the plaintiff’s own expert to conduct the review, while the plaintiff declined to proceed.

The court held that irreparable harm had not been established and that the balance of convenience favoured allowing the defendants to continue selling their software pending trial.

The motion for injunction and related motions were dismissed and the status quo maintained pending expert comparison.

The defendant brought a motion to set aside service of a statement of claim and stay an Ontario action alleging a historical sexual assault that occurred decades earlier in Ontario.

The plaintiff resided in the Middle East and had not lived in Canada for approximately 30 years, while the defendant had resided in Manitoba since the early 1970s and had serious health issues.

Applying the real and substantial connection test and forum non conveniens principles, the court held that the connection between the claim and Ontario was insignificant and that the presence of plaintiff’s counsel in Ontario did not establish jurisdiction.

The court further determined that Manitoba was the more appropriate forum, given the defendant’s residence and health circumstances.

Service was set aside and the proceeding was stayed.

The garnishee appealed a motion judge's order requiring it to pay 100 percent of the compensation it paid to the debtor to the creditor, until the creditor's judgment was satisfied.

The Divisional Court allowed the appeal, finding that under s. 72 of the Wages Act, 80 percent of a person's wages are exempt from garnishment.

The order was varied to require the garnishee to pay 20 percent of the debtor's compensation to the creditor, while 100 percent of any non-compensation debts or shareholder distributions remained subject to garnishment.

The appellant appealed a trial judge's family law orders regarding equalization of property, spousal support, child support, and the matrimonial home, arguing errors in fact and law, as well as a denial of natural justice.

The Divisional Court found that the trial judge, who assisted both self-represented parties, made no palpable or overriding errors and did not misapprehend the evidence.

The court upheld the trial judge's order for step-down spousal support based on imputed income, noting the appellant could seek recourse if her circumstances changed.

The appeal was dismissed without costs.

The appellant physician appealed a four-month suspension imposed by the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The suspension resulted from the appellant's failure to maintain a narcotics log, which breached an undertaking he had provided to the College following previous disciplinary concerns regarding his prescribing practices.

The Divisional Court applied a reasonableness standard of review and found that the penalty was within the range of reasonable outcomes, emphasizing the importance of undertakings to the self-regulatory scheme and the need for general and specific deterrence.

The appeal was dismissed.

The appellants, a contractor and an intermediary, appealed a Small Claims Court judgment finding them in breach of a home renovation contract and awarding the respondents $9,500.

The trial judge had found the contractor breached the contract by demanding a scheduled installment payment before completing equivalent work.

The Divisional Court allowed the appeal, holding that the trial judge erred by implying a term that contradicted the written payment schedule, which did not require work to be completed before installments were due.

The court also found the damages calculation resulted in a windfall.

The respondents' claim was dismissed, and the appellants' counterclaim was remitted for an assessment of damages.

The defendant in a motor vehicle accident claim moved for the production of correspondence relating to the settlement of the plaintiff's other motor vehicle accident claims, arguing it was necessary to prevent double recovery for economic loss.

The court dismissed the motion, holding that the settlement negotiations were protected by settlement privilege and were irrelevant.

The court noted that the plaintiff's damages would be determined through a global assessment based on medical evidence, ensuring the defendant would only pay for the damages they caused.