Robert F. Scott

The respondent union sought judicial review of a labour arbitration award that partially upheld the dismissal of a tenured university professor.

On an interim motion, the university asked the court to exclude an affidavit from counsel who had attended the arbitration hearing, arguing the material was inadmissible on judicial review.

Applying the principles from Keeprite and subsequent authority, the court held that affidavit evidence may be admitted in rare circumstances to demonstrate a complete absence of evidence on an essential point or a breach of natural justice.

Given the absence of a formal record of the arbitration proceedings and concerns regarding reliance on a disputed report, the court found the case fell within the exceptional category.

The affidavit evidence was permitted to be considered by the Divisional Court on the judicial review.

The plaintiff insurance brokerage sought an interim interlocutory injunction restraining former employee producers and their new employer from soliciting or dealing with certain customers pending a full motion hearing.

The court applied the three‑part test from RJR–MacDonald for interlocutory injunctions.

While there appeared to be a strong prima facie case against one former employee, the evidence against the others was largely speculative, and the alleged harm was found to be quantifiable through damages given the nature of the brokerage business.

Considering the balance of convenience, delay by the plaintiff, and the availability of undertakings proposed by the defendants, the court declined to grant the requested interim injunction and instead accepted undertakings pending the return of the motion.

A federal inmate applied for habeas corpus with certiorari in aid challenging an involuntary transfer from a medium security institution to a high security institution following discovery of a sharpened knife in the inmate’s shoe.

The applicant argued the warden’s decision was unreasonable under the standard articulated in Mission Institution v. Khela because a member of the case management team believed the inmate’s explanation that he was unaware of the weapon.

The court held the warden was the statutory decision-maker and that the transfer decision fell within the range of reasonable outcomes based on the safety risks posed by possession of a weapon in a correctional facility.

The existence of a differing opinion among staff did not render the decision unreasonable.

The habeas corpus application was dismissed.

A federal inmate brought an application for habeas corpus with certiorari in aid seeking transfer from a maximum security institution back to a medium security facility following an involuntary transfer related to an inmate assault investigation.

The applicant alleged breaches of procedural fairness, inadequate disclosure under the Corrections and Conditional Release Act, and violations of section 7 of the Charter.

The court reviewed confidential sealed material relied upon by the warden and held that limited disclosure was justified under s. 27(3) of the CCRA to protect the safety of confidential sources.

The court concluded that the security reclassification and transfer decision were reasonable and lawful, and that the respondent satisfied its burden to justify the deprivation of liberty.

The habeas corpus application was therefore dismissed.

The appellant appealed a conviction for dangerous driving following a trial where he was acquitted of impaired driving but convicted of dangerous driving and sentenced to a one-year driving prohibition and a fine.

The appellant argued the trial judge misapprehended evidence concerning post‑accident alcohol consumption and improperly relied on Intoxilyzer readings to infer alcohol consumption before the accident.

The appellate court held that where there is intervening or "bolus" alcohol consumption, it is generally unsafe to infer pre‑incident drinking without expert evidence or other strong proof establishing the amount consumed.

The trial judge misapprehended the evidence relating to post‑accident alcohol consumption.

The conviction was set aside and a new trial ordered because there remained evidence capable of supporting a dangerous driving conviction even without the alcohol inference.

The Crown appealed an acquittal on charges of sexual assault and indecent act arising from an incident in a grocery store.

The trial judge had acquitted the accused after concluding that the Crown had not proven the offence beyond a reasonable doubt, but did so without allowing the Crown to make submissions on the sexual assault charge.

On appeal, both parties agreed this constituted an error in law.

Applying the standard from Graveline, the court considered whether the error might reasonably have had a material bearing on the acquittal.

After reviewing the transcript and witness evidence, the court concluded that the evidence was capable of supporting a conviction and that the verdict could have been different.

The defendant neurologist brought a motion for summary judgment seeking dismissal of a medical negligence claim as statute‑barred under the Limitations Act, 2002.

The plaintiffs alleged negligence arising from emergency room treatment preceding a stroke, asserting that the neurologist consulted during the visit may have contributed to the failure to diagnose and treat.

The defendant argued the claim was commenced more than two years after the plaintiffs knew or ought to have known the material facts supporting the claim.

The court held that discoverability was complex in the circumstances due to conflicting expert opinions and uncertainty regarding the neurologist’s role, and concluded that a genuine issue requiring a trial existed.

The motion for summary judgment was therefore premature.

The plaintiffs were successful in their motion for leave to appeal, with the ultimate issue concerning the limitation period reserved to the trial judge.

The court awarded costs of the motion to the plaintiffs in the amount of $3,500, exclusive of disbursements and HST, considering the factors in Rule 57.01 and the uniqueness of the law.

The moving parties sought an order discharging or limiting a Certificate of Pending Litigation registered by the responding parties in relation to a recreational time‑share cottage development.

The responding parties alleged entitlement to interval ownership in one of the cottages pursuant to contractual arrangements connected to the sale and redevelopment of their former property.

Applying the equitable factors governing discharge of a certificate under s. 103(6) of the Courts of Justice Act, the court found that the claims raised a triable issue regarding an interest in land and that damages alone would not adequately compensate the responding parties.

The court concluded that the moving parties had not established sufficient grounds to discharge the certificate.

The certificate remained registered, though the court indicated it could potentially be confined to the specific intervals in dispute.

The defendant, Dietrich Construction Limited, sought leave to appeal an order allowing the plaintiffs to amend their Statement of Claim to include claims for sand removal dating back to 1998.

The defendant argued the motion judge erred regarding the expiration of the limitation period and the conflict between the Limitations Act, 2002 and Rule 26.01.

The Divisional Court dismissed the motion, finding no conflict in the law and that discoverability remained a factual issue for the trial judge.

The Children's Aid Society brought a motion for summary judgment seeking Crown wardship of four children who had been in care for over two years.

The mother and her common-law partner opposed the motion, arguing that they had made progress and could call witnesses to support their case.

The court dismissed the motion, finding that a triable issue existed and emphasizing the need for caution before making a Crown wardship order.

Following competing summary judgment motions in a civil commercial dispute, the court addressed the issue of costs.

The plaintiff’s summary judgment motion had previously been dismissed, while the defendant’s cross‑motion was found premature and allowed to be brought again after discoveries.

The plaintiff argued that the defendant should not receive costs because it withdrew one cross‑motion and the remaining motion was premature.

The court found that misleading and contradictory evidence advanced by the plaintiff undermined the litigation process and forced the defendant to bring the cross‑motions.

Considering the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs.

The defendant brought a motion for summary judgment seeking dismissal of the plaintiff’s claim as statute-barred under both the former and current Limitations Act regimes.

The moving party argued that, even accepting the plaintiff’s evidence at its highest, the limitation period had expired.

The court acknowledged that the limitation argument had merit but found that credibility issues and the incomplete evidentiary record made summary determination inappropriate.

The court held that a full trial and discoveries were necessary for the trier of fact to properly assess the evidence and refine the issues.

The motion was adjourned sine die with leave to renew the limitation argument on notice.

The respondent landlords brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order, or alternatively to lift the automatic stay of the eviction.

The tenant was $8,800 in rent arrears and claimed an equitable interest in the property, having registered a Certificate of Pending Litigation in a separate action.

The court found the motion to quash premature but ordered the stay lifted unless the tenant paid all rent arrears and ongoing monthly rent pending the appeal.