Phillip W. Sutherland

The appellant was convicted of impaired operation of a motor vehicle and sentenced to a twelve-month driving prohibition.

He appealed the conviction and sentence and brought an application to stay the driving prohibition pending appeal.

The court found that the appeal was not frivolous, the appellant would suffer financial hardship without his license as the sole income earner, and granting the stay would not pose an unacceptable risk to public safety.

The application was granted, and the driving prohibition was stayed with conditions.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his discrimination application as abandoned.

The Tribunal had directed the applicant to resubmit documents it deemed faint and illegible, and dismissed the application when he allegedly failed to comply.

The Divisional Court granted the judicial review, finding the Tribunal's decision unreasonable because the documents, while faint, were clearly legible.

The matter was remitted to the Tribunal for a hearing before a different adjudicator.

The applicant, charged with drug and firearm offences following a robbery investigation, brought a Charter application alleging his s. 8 rights were breached by a police search of a residence.

The court found the Information to Obtain (ITO) the search warrant lacked a sufficient evidentiary nexus connecting the applicant to the searched premises.

Consequently, the search violated the applicant's s. 8 rights.

Applying the Grant framework under s. 24(2), the court concluded that the serious nature of the Charter-infringing conduct and the high expectation of privacy in a residence outweighed society's interest in adjudicating the case on its merits.

The evidence seized during the search was excluded.

The applicant sought to be relieved of its obligation to pay interest at the contract rate of 11.2% on a prompt payment determination, arguing that its payment of funds into court as security stayed the interest clock.

The Divisional Court rejected this argument, finding that the payment into court was merely security and did not vary the terms of the determination.

The court affirmed its jurisdiction to calculate the balance owing and ordered the applicant to pay the remaining interest accrued, less the income earned on the funds held in court.

The appellant appealed a motion decision finding its claim for lien had expired for failing to set the action down for trial within two years as required by s. 37 of the Construction Act.

The appellant argued its lien was saved because another lien claimant on the same project had set its action down in time, asserting they were part of the same 'improvement'.

The Divisional Court dismissed the appeal, holding that an 'improvement' is tied to the specific lands described in the claim for lien.

Because the appellant and the other claimant registered liens against different lands, the appellant could not enforce its lien in the other claimant's action.

Following the dismissal of its application, the applicant sought to make further submissions regarding recent amendments to the definition of 'written notice of lien' under the Construction Act.

The Divisional Court declined the request, finding that the amendments, which came into effect after the applicant's payment obligations arose, did not apply retrospectively.

The court also declined to provide general guidance on the new amendments, noting that such guidance should be reserved for cases where the issue is material to the result.

The plaintiff, a tree service company, brought construction lien actions against the defendants, a joint venture consortium, for unpaid work and extras related to clearing and grubbing for the Highway 407 East extension project.

The defendants counterclaimed for damages incurred to complete the work after terminating the subcontract due to the plaintiff's non-performance.

The court found that the written subcontract governed and required the plaintiff to clear the entire right-of-way for a lump sum, rejecting the plaintiff's argument that the scope was limited to a smaller area.

The court upheld the defendants' termination of the subcontract for non-performance.

The plaintiff was awarded $177,437.53 for unpaid contract work, holdback, and certain approved extras, while its claims for loss of profit, quantum meruit, and punitive damages were dismissed.

The defendants were awarded $411,244.81 on their counterclaim for the costs of retaining replacement subcontractors.

The applicant owner sought judicial review of an adjudicator's determination ordering it to pay the respondent contractor $685,574.91 under the prompt payment regime of the Construction Act.

The owner argued the adjudicator erred by rejecting its set-off claim for delay, misinterpreting notice holdback obligations, and conducting a procedurally unfair hearing.

The Divisional Court dismissed the application, finding the adjudicator reasonably concluded the contract did not support the delay claim and correctly held that actual notice of registered liens does not trigger notice holdback obligations.

The court also found no procedural unfairness or reasonable apprehension of bias.

The appellant, a teacher, appealed a decision of the Discipline Committee of the Ontario College of Teachers finding her guilty of professional misconduct for physically and emotionally abusing a special needs student and for unprofessional conduct towards colleagues.

The appellant argued that the Committee erred by excluding expert evidence on anti-Black racism, failing to address unconscious bias, improperly assessing credibility, and admitting an investigation report containing hearsay.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the Committee's factual findings or credibility assessments.

While the Committee erred in relying on prior consistent statements, the error did not result in a substantial wrong.

The penalty of a five-month suspension and costs was upheld.

The applicant, a former graduate student, sought judicial review of Toronto Metropolitan University's decisions rejecting his grade appeal, denying a reassessment of his coursework, and dismissing his discrimination complaint.

The Divisional Court found that the university's decisions under its academic policies and human rights procedures were reasonable and that the applicant was afforded procedural fairness throughout the process.

The application for judicial review was dismissed.

The appellant municipality appealed a decision of the Assessment Review Board regarding the classification of multi-unit rental residential properties under a realty tax incentive scheme.

The Board had interpreted the phrase 'a building permit' in O. Reg. 282/98 to mean any building permit issued for the development, allowing the respondents to benefit from the incentive despite the project being well underway.

The Divisional Court found that the Board erred in principle by failing to apply the modern approach to statutory interpretation.

The appeal was allowed, the Board's decision was quashed, and the matter was remitted for a fresh determination.

The court sentenced Travendous Beals after guilty pleas to possession of fentanyl, unlawful possession of a firearm while prohibited, and unlawful possession of a loaded firearm.

The decision reviews the circumstances of the offences, Beals’ personal background, and the application of sentencing principles, including the impact of systemic anti-Black racism (Morris factors) and harsh pre-sentence custody conditions (Duncan factors).

The court imposed a global sentence of 10 years, reduced by pre-sentence custody, and made ancillary orders.

The decision addresses a motion by the defendants (including His Majesty the King in Right of Ontario and several OPP officers) to strike portions of the plaintiffs’ Amended Amended Statement of Claim and Economical Insurance Group’s Defence and Crossclaim, under Rules 21 and 25.11 of the Rules of Civil Procedure.

The court strikes certain paragraphs for failing to disclose a reasonable cause of action, particularly those alleging a private duty of care in negligent investigation by police officers to victims, but allows others to stand and grants leave to amend.

The court reviews the legal principles for striking pleadings and the scope of police officers’ duty of care, ultimately finding that a tenable claim may exist based on statutory duties.

The court granted summary judgment in favour of the defendants, dismissing the plaintiff’s action arising from a motor vehicle accident involving escaped cattle.

The court found no evidence of negligence, breach of duty of care, or public nuisance on the part of the defendants.

The decision emphasizes the requirement for the responding party to put their best foot forward on a summary judgment motion and clarifies that the mere escape of a farm animal is insufficient to establish liability without evidence of negligent action or inaction.

The moving party brought a motion for leave to appeal a decision of the Ontario Land Tribunal.

The Divisional Court granted the motion for leave to appeal, with costs fixed at $10,000 payable in the discretion of the appeal panel.

The moving party brought a motion for leave to appeal a decision of the Assessment Review Board.

The Divisional Court dismissed the motion for leave to appeal without costs.

The moving parties brought a motion for leave to appeal the decision of Justice Chalmers dated November 5, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered costs payable to the responding party in the amount of $5,593.50.

The self-represented applicant sought judicial review of a university grading decision.

During the hearing, the respondent university argued that the applicant had not formally raised the Associate Dean's decision not to reassess his course work in the Notice of Application.

To ensure procedural fairness, the Divisional Court adjourned the hearing, permitted the applicant to amend his Notice of Application to include the reassessment decision, and allowed the university to assemble a complete record on that issue.

The Attorney General of Ontario sought forfeiture of $99,210 in Canadian currency seized at Fallsview Casino, alleging it was the proceeds of unlawful activity, specifically money laundering.

The respondent, Branavan Kanapathipillai, claimed the funds were from legitimate gambling and a third mortgage.

The court reviewed expert evidence, financial tracing, and the respondent’s explanations, ultimately finding the Attorney General met the burden of proof on a balance of probabilities.

The court ordered the funds forfeited, finding the respondent’s explanations unconvincing and the circumstances highly suspicious.

The applicant sought judicial review of an adjudicator's prompt payment determination under the Construction Act.

The Divisional Court adjourned the application because the applicant failed to serve notice on the Attorney General as required by s. 9(4) of the Judicial Review Procedure Act.

The court also directed the applicant to serve notice on the Ontario Dispute Adjudication for Construction Contracts (ODACC) due to issues concerning jurisdiction, process, and the public release of adjudication decisions.