Richard A. Lococo

This trial of an issue concerned the determination of the date of separation for the purpose of property division and spousal support in a divorce application.

The applicant contended a separation date of July 2014, following a significant marital conflict, while the respondent argued for an earlier date in June 2000, when the applicant moved into separate quarters within the matrimonial home.

The court applied the "indicia of separation" framework, considering objective factors such as living arrangements, sexual relations, shared activities, financial contributions, and tax filings.

Despite the parties living under the same roof for an extended period, the court found that the matrimonial consortium was not destroyed until July 2014, when the applicant unequivocally decided to end the marriage by retaining legal counsel.

The court fixed the date of separation as July 31, 2014.

The applicant municipality sought a declaration that the respondent developer did not hold an option to purchase a block of municipal land and an order deleting a Notice of Option to Purchase from title.

The court found that the respondent's purchase right was a personal right akin to a right of first refusal, not an equitable interest in land, because the municipality retained the right to determine if it required the land for its own purposes.

Although the respondent's interest was capable of being registered on title under the Land Titles Act, the specific Notice of Option to Purchase was ordered deleted because it gave notice of an interest the respondent did not possess.

The applicant sought comprehensive access to his personal information from his employer, Magna International Inc. and Venest Industries Inc., based on his employment contract and company policies.

The respondents moved to dismiss the application, arguing it disclosed no reasonable cause of action and that the court lacked jurisdiction over matters related to PIPEDA.

The court granted the respondents' motion in part, striking the applicant's broad prayer for relief as not supported by company policies, but granted leave to amend the application to seek more specific disclosure.

The court affirmed it lacked jurisdiction over disputes arising under PIPEDA.

The plaintiffs, Wilfred Davey and Bill Monture, sought partial indemnity costs after successfully amending their statement of claim in a putative class action.

The defendants challenged the quantum of costs.

The court, applying principles of costs assessment, fixed the plaintiffs' partial indemnity costs at $15,500, including disbursements.

The decision addressed and adjusted for HST, an estimated appearance fee, and a modest reduction for costs thrown away related to the defendants' original statement of defence, while deferring the issue of costs for the certification factum.

The plaintiff, Isobel Kozey, brought a motion for leave to amend her personal injury claim to add Broadleaf Landscaping & Snow Removal Inc. and Triovest Realty Advisors Inc. as defendants, following a trip-and-fall incident.

Broadleaf opposed the motion, arguing the claim against it was statute-barred due to the expiry of the limitation period.

The court granted the motion, finding that the plaintiff provided a reasonable explanation for the delayed discovery of Broadleaf's identity, establishing a triable issue regarding discoverability.

The court also dismissed Broadleaf's arguments of non-compensable prejudice and found it unnecessary to rule on the misnomer principle.

The appellant appealed the dismissal of her motion to certify a class action against the Hospital for Sick Children and others regarding the systemic negligence of the Motherisk Drug Testing Laboratory.

The motions judge had found that a class proceeding was not the preferable procedure because resolving the common issues of systemic negligence would not significantly advance the individual class members' claims, which required highly individualized proof of causation and damages.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the motions judge's discretionary balancing of the preferable procedure factors.

The applicant landlord sought judicial review of a Human Rights Tribunal of Ontario decision finding he discriminated against and harassed his tenants based on their religious beliefs.

The tenants, who are practicing Muslims, had requested accommodations regarding notice for apartment viewings and the removal of shoes in their prayer space.

The Divisional Court dismissed the application, finding the Tribunal's denial of an adjournment request was fair and its findings on discrimination, which were largely based on credibility assessments, were reasonable.

The court also found no error in the Tribunal's admission of the applicant's Facebook post into evidence.

The applicant, a disbarred lawyer, applied to the Law Society for a new licence.

After an investigation raised good character concerns, the matter was referred to a hearing.

The applicant brought a motion to quash the referral, which ultimately resulted in a consent dismissal of his licence application.

He then applied to the Divisional Court for judicial review and an order of mandamus compelling the Law Society to issue him a licence.

The Divisional Court dismissed the application, finding that mandamus was unavailable because the applicant had an alternative remedy: he could simply re-apply for a licence and establish his good character at a hearing.

The court also rejected his arguments regarding procedural unfairness.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario imposing a seven-month suspension and a 30-day preparatory period for breaching previous practice restrictions.

The appellant admitted to prescribing prohibited substances and seeing a female patient contrary to a 2011 order.

The Divisional Court dismissed the appeal, finding that the Discipline Committee's penalty was reasonable, fell within the range of acceptable outcomes, and was owed deference.

The moving party sought to review and set aside an order of a single judge of the Divisional Court refusing to extend the time to deliver a notice of appeal.

The underlying action was a defamation claim regarding a negative book review, which was dismissed by a jury.

The moving party delayed over two years before seeking to appeal.

The panel found that the single judge applied the correct legal test, made findings available on the evidence, and properly exercised her discretion in concluding that the justice of the case did not require an extension.

The motion was dismissed.

The appellants appealed a merits decision and a sanctions decision of the Ontario Securities Commission.

The Commission had found that a set of contracts marketed as a tax planning vehicle constituted an 'investment contract' and therefore a 'security' under the Securities Act.

The Commission concluded that the appellants breached the Act by selling these securities without being registered and without filing a prospectus, imposing trading bans, administrative penalties, and costs.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding that the Commission's application of the test for an investment contract was reasonable and that the sanctions imposed were proportionate and justified.

Following a largely unsuccessful motion by the plaintiff to amend his claim and add defendants in a putative class action, the successful respondents sought costs.

The court awarded partial indemnity costs to the Independent Electrical System Operator ($24,000), the Solart-associated entities ($12,500), Melanie Lacroix ($2,500), and Sunny Natalia ($2,500).

The court declined to award the plaintiff costs against the unsuccessful respondent Nikhil Toshniwal regarding the unopposed document service relief.

Honey Bee (Hong Kong) Limited sued VitaSound Audio Inc. and its principals for repayment of a US$500,000 loan and personal guarantees, plus default interest.

VitaSound counterclaimed, alleging Honey Bee breached an investment agreement by failing to supply audio devices and sought equitable set-off for an alleged delivery shortfall.

The court found no enforceable oral amendment to the investment agreement, which required written modifications.

It concluded that VitaSound, not Honey Bee, breached the investment agreement by declining to accept specified PAE-300 units.

Consequently, Honey Bee did not breach its obligations by ceasing supply after VitaSound's default on the loan.

The court dismissed VitaSound's counterclaim and found that equitable set-off was not applicable due to the lack of a clear connection between the claims and VitaSound's prior default.

Judgment was issued in favour of Honey Bee for the loan principal and default interest.

The plaintiffs, Wilfred Davey and Bill Monture, brought a motion for leave to amend their Statement of Claim in a putative class action alleging misuse of funds intended for development projects on Aboriginal land.

The proposed amendments included correcting party names, deleting breach of contract, adding oppression, and recasting/expanding other causes of action such as breach of fiduciary duty, breach of trust, and negligent/fraudulent misrepresentation.

The court granted leave to amend, finding that it was not plain and obvious that the proposed claims for breach of fiduciary duty, breach of trust, negligent/fraudulent misrepresentation, and oppression (under the OBCA) had no reasonable chance of success.

The court also clarified that the proposed class members, as beneficiaries of a trust, could qualify as beneficial owners of shares for the purpose of bringing an oppression claim, distinguishing it from a derivative action.

The appellant physician appealed decisions of the Discipline Committee finding him guilty of professional misconduct and revoking his certificate of registration.

The Committee found that the appellant had deliberately overbilled patients for laser eye surgery and directed staff to alter medical records to conceal the overbilling.

On appeal, the appellant argued the Committee misapprehended the evidence, reversed the burden of proof, and imposed an unreasonable penalty.

The Divisional Court dismissed the appeal, holding that the Committee's credibility findings and weighing of the evidence were reasonable and entitled to deference.

The penalty of revocation was also upheld as reasonable given the premeditated nature of the fraud and the need for public protection.

The defendant, Brian Radford, brought a summary judgment motion seeking to dismiss a solicitor's negligence action initiated by Anna Gionet.

Radford argued that Gionet's claim was statute-barred under the Limitations Act, 2002, asserting that the two-year limitation period had expired before the action was commenced in January 2014.

Gionet contended that she did not discover her claim until September 2013 and, alternatively, that the limitation period should have been tolled due to her mental and psychological incapacity following her husband's death.

The court dismissed the summary judgment motion, finding that there was a genuine issue requiring a trial to determine the actual discovery date of the claim and whether the limitation period was tolled.

The court determined questions of law in a special case arising from a motor vehicle accident.

The primary issue was whether Dmytro Lavrov's vehicle was insured by Manitoba Public Insurance (MPI) at the time of the accident, considering MPI's inter-jurisdictional undertaking and notice requirements for policy suspension.

The court found that MPI was precluded from denying coverage based on Dmytro Lavrov's failure to register his vehicle in Ontario and MPI's failure to provide proper notice of policy suspension under Manitoba law, or equivalent Ontario law.

The third-party claim for contribution and indemnity was not conclusively statute-barred, but the limitation defence otherwise remained outstanding for future determination.

The appellant landlords appealed a decision of the Landlord and Tenant Board which found an agreement to terminate the respondents' tenancy under s. 37(3) of the Residential Tenancies Act, 2006.

The landlords argued the Board erred by not applying general contract principles such as offer, acceptance, and consideration.

The Divisional Court held the standard of review was reasonableness and the Board made no error of law, as the statute only requires finding whether the parties agreed or consented to terminate, not a formal contract.

The appeal was dismissed.

The plaintiff in a putative class action regarding unfulfilled solar panel installation contracts brought a motion to amend the statement of claim, add 17 new defendants (including the IESO), and extend the time for service on several existing defendants.

The court dismissed the motion to add the IESO and 15 Solart-associated entities, finding the claims against them were statute-barred as the plaintiff knew or ought to have known of the claims more than two years prior.

The court partially granted leave to amend the claim against existing defendants, striking certain proposed paragraphs that improperly pleaded evidence or lacked material facts.

The court granted the extension of time for service on several defendants, finding no actual prejudice to the defence.

The applicants, including several religious physicians and organizations, challenged two policies of the College of Physicians and Surgeons of Ontario that require physicians who object to providing certain medical services (such as abortion or medical assistance in dying) on religious or conscientious grounds to provide an 'effective referral' to a non-objecting provider.

The applicants argued these policies infringed their rights to freedom of religion and equality under the Charter.

The Divisional Court held that while the effective referral requirements did infringe the physicians' freedom of religion under s. 2(a) of the Charter, the infringement was justified under s. 1 as a reasonable limit to ensure equitable access to healthcare for patients.

The court dismissed the applications.