Phillip W. Sutherland

Four construction lien claimants brought motions for default judgment against the general contractor and the owner of the property.

The general contractor and owner were noted in default.

The court granted default judgment against the general contractor for the unpaid amounts owed to all four claimants.

However, the court found that only one claimant had validly preserved and perfected its claim for lien under the Construction Act.

The court also found the owner liable for the statutory holdback, which was awarded to the sole claimant with a valid lien.

This is a motion for court approval of a settlement in a complex medical malpractice case involving a person under disability, Nathaniel Hughes.

The plaintiffs sought approval of a $4.5 million settlement, including a structured annuity, for injuries sustained by Nathaniel as an infant at Peterborough Regional Health Centre.

The court reviewed the settlement under Rule 7.08 of the Rules of Civil Procedure, considering the risks of litigation and the best interests of the person under disability.

The court found the settlement, including legal fees and disbursements, to be fair and reasonable given the complexities and risks, and approved it.

The respondent (1000093910 Ontario Inc.) brought an urgent motion for the court to sign a draft order including a provisional execution, which was opposed by the prospective purchaser (2557904 Ontario Inc.).

The purchaser had filed an appeal and sought a stay of a prior endorsement.

The court considered the urgency due to significant daily costs and an expiring financing offer.

The court affirmed its jurisdiction under section 195 of the Bankruptcy & Insolvency Act to grant provisional execution, rejecting the purchaser's arguments that such relief was not properly requested or that jurisdiction lay solely with the Court of Appeal.

Balancing the irreparable harm, the court found that the prejudice to the applicant (Peakhill Capital Inc.), respondent, second mortgagee, and guarantors if provisional execution was not granted outweighed the harm to the purchaser.

The motion for provisional execution was granted.

The plaintiff sought certification of a class action against the Attorney General of Canada on behalf of veterans who experienced delays in the processing of disability benefits.

The court applied the five-part test under s. 5(1) of the Class Proceedings Act.

The court struck the claims for breach of s. 7 of the Charter, breach of fiduciary duty, breach of contract, and negligent misrepresentation, finding it plain and obvious they could not succeed.

However, the court found the negligence claim disclosed a reasonable cause of action.

The court certified the class action for the negligence claim, conditional on the plaintiff amending the class definition.

The applicant sought judicial review of two decisions by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) denying his claims for ongoing permanent disability pensions and other benefits related to workplace injuries from 1985.

The Divisional Court applied the reasonableness standard of review and found that WSIAT's decisions were logical, transparent, and amply supported by the medical evidence and applicable policies.

The application for judicial review was dismissed.

The defendants, Clyde Zhang and City of Vaughan, brought a motion under Rule 2.1.01(6) of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process.

The plaintiff, Xiao Hong Ye, had filed a claim alleging nuisance from an outdoor condenser unit owned by Zhang and negligence/breach of duty of care by the City of Vaughan for failing to enforce by-laws.

The court, applying the robust interpretation of Rule 2.1, found that the plaintiff's claim presented a possible action and was not one of the 'clearest of cases' warranting dismissal at this preliminary stage.

The court refused to grant the defendants' requested relief, noting that other remedies were available to address potential limitation issues or lack of duty of care.

This decision addresses the costs award following a jury verdict in favour of the Plaintiff.

The Plaintiff sought costs on an actual indemnity basis, arguing complete success and a more favourable Rule 49 offer to settle compared to the Defendants' "hardball" offer.

The court, applying Rules of Civil Procedure 57.01 and 49, found the Plaintiff was the successful party and that the Defendants' unreasonable settlement position warranted a higher costs award.

The court awarded the Plaintiff costs on a partial indemnity basis up to September 15, 2023, and substantial indemnity thereafter, totaling $284,800.73, emphasizing that the principle of proportionality had minimal bearing due to the Defendants' conduct.

The appellants appealed a director's decision under the Technical Standards and Safety Act, 2000, which partially affirmed inspector's orders following a carbon monoxide poisoning incident.

The appellants argued the director erred by relying on insufficient evidence from an inadequate investigation and breached procedural fairness by holding a written hearing and failing to order document production.

The Divisional Court dismissed the appeal, finding the director properly weighed the evidence in an administrative context and that the written hearing met the requisite duty of fairness.

The appellant appealed a Licence Appeal Tribunal decision denying her income replacement benefits following a motor vehicle accident.

At the time of the accident, the appellant was an on-call agency worker who had not worked for six weeks.

The Divisional Court upheld the Tribunal's finding that the appellant was not 'employed' under s. 5(1)1(i) of the Statutory Accident Benefits Schedule, applying the interpretation from Arab v. Unica Insurance that employment requires the exchange of remuneration for services over a defined period.

The appeal was dismissed.

The moving party brought a motion for leave to appeal the order of Hassan J. dated January 16, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered no costs.

The plaintiff initiated a civil action against the Town of Ajax after tripping and falling on a sidewalk discontinuity.

While the parties settled the quantum of damages, the issue of liability remained.

The court found that the sidewalk was in a state of non-repair, establishing a prima facie case of liability against the Town.

However, the Town successfully invoked the statutory defence under section 44(3)(a) of the Municipal Act, 2001, by demonstrating it did not know and could not reasonably have been expected to know about the specific state of repair of the sidewalk before the accident.

Consequently, the action against the Town was dismissed.

The plaintiff brought an oral motion during trial to strike portions of an affidavit and its exhibits, primarily on grounds of hearsay, inadmissibility as business records, opinion/legal conclusion, prior consistent statements, and non-compliance with discovery rules.

The court largely dismissed the motion, finding most documents admissible as business records under section 35 of the Evidence Act.

It ruled that diary notes were not inadmissible prior consistent statements and granted leave for information not provided within 60 days due to lack of prejudice.

However, the court struck one speculative sentence from the affidavit and ruled that numerous photographs were not admissible as business records.

The applicant employer sought judicial review of an arbitrator's decision confirming his jurisdiction over certain conductor-only grievances.

The Divisional Court dismissed the application as premature, finding that the arbitrator had only determined he remained seized of the process to decide the scope of his authority, but had not yet ruled on whether the specific lead grievances were arbitrable.

The court noted that any challenge to the arbitrator's general jurisdiction should have been brought after his initial 2018 interlocutory order.

The moving party brought a motion for leave to appeal an order of an Associate Justice.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $2,500 to the responding party.

The moving party brought a motion for leave to appeal the order of Perfetto J. dated July 18, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered that there be no costs for or against any party.

The moving party sought leave to appeal an order of Leiper J. The Divisional Court dismissed the motion for leave to appeal.

The responding parties requested costs but failed to provide a Costs Outline as required, resulting in no costs being awarded.

The unrepresented appellant, through their litigation guardian, brought a motion for leave to appeal an order of Chalmers J. dated November 2, 2023.

The Divisional Court dismissed the motion for leave to appeal.

No costs were ordered for or against any party.

The plaintiff subcontractor entered into a fixed-price contract with the defendant general contractor to install high-pressure concrete watermains at a pumping station.

The installed pipes repeatedly failed pressure tests.

The plaintiff stopped work, claiming non-payment of invoices, and the defendant subsequently terminated the contract.

In this first phase of a bifurcated trial to determine liability, the court found that the plaintiff failed to prove the pipes failed due to the defendant's failure to provide a stable subgrade or install a concrete beam.

The court also found the plaintiff was not owed the claimed funds under the contract's payment terms when it stopped work.

Consequently, the court concluded the plaintiff breached the contract by abandoning the project.

The plaintiffs, a law firm and its lawyers, brought a summary judgment motion for defamation against a former client, the defendant, for negative online statements posted on Google Reviews.

The defendant's review alleged the plaintiffs were "incompetent" "untrustworthy" "highly negligent" "shady" "pathetic" "a joke" and "awful lawyer." The court found these statements defamatory, satisfying the three-part test from Grant v. Torstar.

The defendant failed to advance any valid defence, including an anti-SLAPP motion, due to procedural non-compliance.

The court assessed general damages, considering factors such as the plaintiffs' professional standing, the seriousness and public nature of the statements, and the defendant's initial refusal to retract or apologize.

Despite the defendant's financial situation, the court awarded the plaintiffs $20,000 in general damages and $9,500 in costs, emphasizing that online comments are not immune from legal repercussions.

The applicant sought judicial review of three decisions of the Health Professions Appeal and Review Board, which confirmed decisions of the Inquiries, Complaints and Reports Committee of the Royal College of Dental Surgeons to take no further action regarding his complaints against three dentists.

The applicant alleged procedural fairness violations and that the decisions were unreasonable.

The Divisional Court dismissed the application, finding that the Board accorded the applicant procedural fairness and that its decisions were reasonable and adequately justified.