Robert J. Fenn

The appellants sought to advance a new theory regarding a 15-degree bend in the property boundary line between their lot and the respondent's lot on Jack Lake.

This theory was based on new expert evidence obtained after the Court of Appeal's 2020 decision, which had remitted the matter back to the Superior Court to determine the location of the water's edge in 1902 and related issues.

The motion judge dismissed the appellants' second application as a collateral attack on the 2020 order.

The Court of Appeal upheld this dismissal, finding the second application constituted an abuse of process because the bend theory could and should have been raised in the original application.

The court also rejected the appellants' alternative motion to vary the 2020 order.

This decision concerns the approval of a class action settlement and associated legal fees and honoraria following an aircraft accident.

The class action arose from a November 9, 2018 incident where Fly Jamaica Flight OJ 256 made an emergency landing, resulting in substantial damage and passenger injuries.

After extensive negotiations, a $5,550,000.00 lump sum settlement was reached.

The court approved the settlement agreement, certified the action against newly added defendants for settlement purposes, approved class counsel's fees of 25% of the settlement amount plus disbursements, and approved a $5,000 honorarium for each representative plaintiff.

The court found the settlement to be within the range of reasonableness and the fees to be fair and reasonable.

This is an appeal from an order granting possessory title by reason of adverse possession.

The appellant argued the trial judge erred in applying the inconsistent use test, claiming the title holder's long-term intention for future development created no inconsistency with the adverse possessor's residential use.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the relevant use of the title holder's land was commercial farming, which was inconsistent with the respondents' residential use.

The court also upheld the dismissal of the appellant's claim for damages related to a certificate of pending litigation and the award of punitive damages against the appellant for destroying the disputed property without warning.

The plaintiff brought a motion for summary judgment against the defendant for damages arising from the defendant's failure to close a real estate transaction.

The defendant raised numerous defenses, including intoxication, misrepresentation, non est factum, undue influence, duress, and unconscionability, largely blaming the dual real estate agent.

The court found that none of the defenses raised a genuine issue for trial, noting the defendant's lack of credibility and failure to provide supporting evidence.

The court also rejected the defendant's argument that the motion was an inappropriate request for partial summary judgment due to an outstanding third-party claim against the real estate agent.

The court awarded the plaintiff $168,962.63 in damages and declined to stay the enforcement of the judgment.

The plaintiffs sought early production of an investigation report from the defendants to determine whether there was an evidentiary basis to serve two John Doe defendants located in Mexico.

The defendants opposed the request, arguing that the normal discovery process under the Rules of Civil Procedure should be followed.

The court agreed with the defendants, holding that the plaintiffs could not compel early production to avoid the ordinary costs risks of litigation.

The plaintiffs were ordered to serve the remaining defendants within 60 days.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant was awarded costs of the appeal in the agreed upon, all-inclusive amount of $15,000.

The appellant appealed a trial decision determining the terminus of a lot line between two waterfront properties on a controlled lake.

The trial judge found that the term 'High Water Mark' on the registered plan unambiguously referred to the Normal Controlled High Water Level.

The Court of Appeal allowed the appeal, finding that the term created a latent ambiguity and that the original subdivider intended to convey all the land it owned, which extended to the water's edge at the time of the 1902 Crown patent.

The matter was remitted to the trial court to determine the water's edge at the time of the Crown patent and the effects of any subsequent erosion or accretion.

A class member, Loyd Mark Noel, brought a motion for permission to opt out of a class proceeding after the specified deadline had passed.

Mr. Noel had inadvertently missed the deadline despite having already commenced an individual lawsuit related to the same incident.

The motion was unopposed by both the class plaintiffs' and defendants' counsel.

The court granted permission, exercising its discretion under section 12 of the Class Proceedings Act, 1992, finding that the inadvertent error and the existence of an individual action justified the late opt-out, with no adverse impact on the class proceeding.

The appellant, a licensed land surveyor, appealed a decision of the Discipline Committee finding him guilty of multiple acts of professional misconduct and revoking his license.

The misconduct included unauthorized billing, performing unnecessary research, and counseling a client to file a malicious complaint against a competitor.

Applying the standard of review from Vavilov, the Divisional Court found no palpable and overriding error in the Committee's findings of fact and mixed fact and law.

The court upheld the penalty of license revocation, noting the appellant's fundamental dishonesty, lack of accountability, and the need to protect the public.

The plaintiffs brought a motion to certify a class action arising from an airline accident involving a flight operated by Fly Jamaica Airways and an aircraft manufactured by Boeing.

The court found that the criteria under section 5 of the Class Proceedings Act were met, including the 'some basis in fact' standard, and certified the action on consent.

The court also granted the plaintiffs' unopposed requests to amend their pleadings to name the pilots and ordered the airline to disclose the passenger list to facilitate notice to the class.

The applicant land surveyor sought a stay of a discipline panel decision revoking his licence and a stay of the publication of the decision pending his appeal.

Applying the three-part test for a stay, the court found a serious issue to be tried regarding the proportionality of the penalty, and that the balance of convenience favoured staying the licence revocation to prevent irreparable harm to his practice.

However, the court declined to stay the publication of the decision, noting the open court principle and the fact that the applicant had already disclosed the decision to third parties.

This decision provides supplementary reasons for a costs order following a successful motion by the plaintiff concerning discovery questions.

The plaintiff was successful on 77 out of 78 questions related to undertakings, questions taken under advisement, and refusals.

The court found the defendants' conduct unreasonable, particularly their refusal to comply with undertakings based on "subsequent developments." The defendants' argument against proportionality of costs was rejected as a bald assertion without detail.

The court found the plaintiff's bill of costs reasonable, noting that much of the work was necessitated by the defendants' non-compliance with court orders and deadlines.

Substantial indemnity costs were awarded to the plaintiff.

The appellant appealed a decision of the Deputy Director of Titles regarding a boundary dispute between neighbouring lakefront properties.

The issue was whether the metes and bounds description in the registered deed and plan of subdivision, which contained a mathematical error, or an original wooden surveyor's stake should govern the boundary line.

The Divisional Court dismissed the appeal, holding that while a registered description generally governs, where it demonstrably fails to express the grantor's true intention, original surveyors' monuments take precedence.

The court affirmed the application of the hierarchy of boundary evidence and section 9 of the Surveys Act.

This initial case conference for a proposed class action addressed the consolidation of two actions, the defendant Boeing Company's contemplation of a jurisdictional challenge, and the defendant Fly Jamaica Airways Ltd.'s apparent cessation of operations, with its insurer undertaking the defense.

A preservation notice was sent to Fly Jamaica.

The certification motion was scheduled for September 3, 2019.

The City of Oshawa appealed a trial justice's decision quashing an Information charging a corporation with failing to obtain a building permit for renovations to an aircraft hangar at the Oshawa Airport.

The trial justice found that the doctrine of interjurisdictional immunity applied, immunizing the respondent from provincial building code enforcement because the property was integral to federal jurisdiction over aeronautics.

The appellate court dismissed the appeal on the merits, finding the trial justice correctly applied the doctrine.

However, the court set aside a costs award of $111,000 plus HST against the prosecution, finding insufficient evidentiary foundation for such an award and palpable and overriding error in the trial justice's reasoning regarding the conduct of the prosecutors and the City of Oshawa.

The plaintiffs and two of the three defendants in a multi-party aviation negligence action entered into a Pierringer agreement.

The plaintiffs brought a motion to implement the agreement, seeking to amend their claim to proceed only against the non-settling defendant (NAV Canada) for its proportionate share of fault, and to dismiss all crossclaims and third-party claims.

NAV Canada did not oppose the dismissal but sought terms to preserve its discovery rights against the settling defendants.

The court held it had jurisdiction to dismiss the crossclaims as they would become untenable once the plaintiffs limited their claim.

The court granted the motion on terms designed to protect NAV Canada's procedural rights, including orders for the preservation of evidence and the ability to seek discovery from the settling defendants if necessary.

The applicants sought leave to appeal a Master's decision reserving the costs of a motion to strike an affidavit to the judge hearing the underlying application.

The applicants argued they were largely successful on the motion to strike and should have been awarded costs.

The court dismissed the motion for leave to appeal, finding no error in principle in the Master's conclusion that he could not determine which party was more successful without a qualitative analysis of the struck paragraphs, which was best left to the application judge.

A twin-engine aircraft lost power in its left engine during a flight from Ontario to Delaware and crashed in New York State, killing the two pilots and one passenger.

The pilots' estates sued the companies that inspected and maintained the engine and the engine manufacturer.

The manufacturer moved for summary judgment arguing that the United States General Aviation Revitalization Act of 1994 barred the claims because the aircraft was delivered more than 18 years prior to the accident.

The motion judge found that Ontario law applied because the crux of the claims involved negligent misrepresentation in repair instructions received and relied upon in Ontario.

The manufacturer appealed.

This is a costs decision following the quashing of a provincial offence charge against the defendant for failing to obtain a building permit for construction to its hangar at the Oshawa Airport complex.

The court found that the constitutional doctrine of interjurisdictional immunity applied, rendering the charge void ab initio.

The court subsequently determined that the City of Oshawa, as prosecutor, had displayed marked and unacceptable departure from reasonable prosecution standards, warranting a costs award.

The court awarded costs on a substantial indemnity basis, finding the prosecutor had acted in self-serving interests rather than the public interest, had failed to disclose relevant materials, had breached prosecutorial responsibilities by using settlement discussions against the defendant, and had proceeded despite clear jurisprudence establishing federal exclusive jurisdiction over aeronautics.

The applicant sought judicial review of an interim ruling by the Discipline Committee of the Association of Ontario Land Surveyors, which had deferred a decision on a motion to dismiss charges until the end of the hearing.

The Divisional Court dismissed the application as premature.

The court emphasized its reluctance to fragment administrative proceedings and noted that the tribunal had the jurisdiction to control its own process and defer its decision until a full evidentiary record was available.