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.

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.

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.

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 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 defendant corporation was charged with failing to obtain a building permit for modifications to a hangar at Oshawa Airport, contrary to the Building Code Act, 1992.

The defendant raised a constitutional challenge based on federal exclusive jurisdiction over aeronautics under the doctrine of interjurisdictional immunity.

The court found the Building Code Act provisions invalid as applied to the defendant's hangar and dismissed the charge.

Subsequently, the court awarded costs against the City of Oshawa as prosecutor, finding the prosecution exhibited flagrant departure from reasonable standards, including tunnel vision, witness bias, failure to disclose relevant documents, and refusal to accept established jurisprudence on federal aeronautics jurisdiction.

The defendants Teledyne Continental Motors Inc. and Teledyne Technologies Incorporated (CMI) moved for summary judgment to dismiss claims and cross-claims against them, arguing that a U.S. federal statute, the General Aviation Revitalization Act (GARA), imposed an 18-year limitation period that had expired.

The motion was opposed by other defendants, Aviation Technical Consultants (ATC) and Corporate Aircraft Restorations Inc. (CAR), who had cross-claimed against CMI for negligent misrepresentation.

The court, applying Ontario's choice of law rules, determined that the tort of negligent misrepresentation occurred in Ontario where CMI's allegedly faulty instructions were received and relied upon.

Consequently, U.S. law, including GARA, did not apply to bar the claims, and CMI's motion for summary judgment was dismissed.

A corporation charged with failing to obtain a building permit under the Ontario Building Code Act, 1992 for modifications to an aircraft hangar at the Oshawa Airport successfully defended the charge on constitutional grounds.

The court found that the hangar, located within the airport complex and used for aviation purposes, falls within the exclusive federal jurisdiction over aeronautics.

The doctrine of interjurisdictional immunity applied, rendering the provincial building code requirement inapplicable to the federally regulated facility.

The court also dismissed a section 11(b) Charter application regarding trial delay, finding the delay, though significant, was within acceptable bounds given the complexity of the constitutional issues and societal interest in the matter.

The defendants brought a motion to strike the plaintiff's claim and sought a declaration that Nova Scotia law governed their Aircraft Management and Operating Agreement.

The court determined that Ontario law was the proper law of the agreement, applying principles of issue estoppel, rectification of mistake, bona fide choice of law, and public policy (attornment).

The motion to strike was granted in part: claims for regulatory complaint, inducing breach of contract against the corporate defendant, and oppression remedy were struck without leave to amend.

Claims for unlawful means and charter revenue were struck with leave to amend.

The request to strike the declaratory relief regarding a possessory lien was dismissed.

The appellant appealed a case management master's order compelling answers to various discovery questions in litigation arising from the crash of a Bombardier Global 5000 aircraft and a subsequent insurance coverage dispute.

The appellant argued the questions were irrelevant because the case turned solely on contractual interpretation of a pilot training clause and also asserted statutory privilege over information related to a Transportation Safety Board investigation.

The court held that the circumstances of the accident, pilot training, and statements provided to the Transportation Safety Board were relevant to issues raised in the pleadings, including whether simulator time satisfied the contractual pilot training requirement.

The court further held the statutory privilege argument was improperly raised for the first time on appeal and, in any event, the public interest in the proper administration of justice outweighed the claimed privilege.

The master's discovery orders were upheld.