Robert J. Fenn

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 appellant sought costs for two trials and an appeal regarding a property dispute involving adverse possession and prescriptive easements.

The Court of Appeal found that the appellant was largely successful and that the respondent's actions in maintaining an erroneous claim to the entirety of the disputed property were unreasonable.

The Court awarded the appellant $282,000 in costs for the two trials and set off the $25,000 appeal costs against a previous costs order in favour of the respondent.

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 trial judgment granting the respondent possessory title over a portion of his beachfront property by way of adverse possession or, alternatively, a prescriptive easement.

The Court of Appeal allowed the appeal in part, setting aside the finding of adverse possession because the respondent had not effectively excluded the appellant from the property.

The Court also varied the easement finding, limiting it to non-vehicular traffic on a specific path, as there was no continuous 20-year period of vehicular use.

The trial judge's costs orders, including an order against the appellant's counsel personally, were set aside.

The appellants appealed a decision of the Surveyor General of Ontario confirming the location of a road allowance under the Surveys Act.

The dispute arose because the confirmed location placed the road allowance on the portion of the appellants' property bordering water, thereby removing their riparian status.

The Divisional Court dismissed the appeal, finding that the Surveyor General had jurisdiction, the fact-finding hearing process was procedurally fair, and her substantive conclusions regarding historical survey evidence and natural boundaries were reasonable and entitled to deference.

The appellant sought to appeal a judgment disposing of claims under the Land Titles Act to the Court of Appeal.

The Court of Appeal determined it lacked jurisdiction, as section 27 of the Land Titles Act directs such appeals to the Divisional Court.

The court transferred the appeal and the related motion for leave to appeal costs to the Divisional Court pursuant to section 110 of the Courts of Justice Act, with a request to expedite the hearing.

In an aviation insurance dispute arising from an aircraft crash, the defendants sought production of documents from the Transportation Safety Board (TSB) under Rule 30.10 of the Rules of Civil Procedure and provisions of the Canadian Transportation Accident Investigation and Safety Board Act.

The court considered whether statutory privileges over cockpit voice recordings, statements to investigators, and representations made regarding draft TSB reports could be overridden.

Applying the statutory balancing tests, the court ordered production of the cockpit voice recorder recordings and certain factual documents where the public interest in the proper administration of justice outweighed the privilege.

Statements given to investigators for aviation safety purposes were largely protected, and representations regarding the TSB draft report remained absolutely privileged.

The flight data recorder information was ordered produced as it was not covered by statutory privilege.

Multiple procedural motions arose in two related aviation negligence actions seeking recovery of insured losses after aircraft hydroplaned and left runways at Ottawa International Airport.

The plaintiffs sought coordinated case management, common discoveries and production, and trial management orders, while the defendants challenged the adequacy of the plaintiffs’ affidavit of documents and disputes arose regarding discovery scheduling.

The court ordered that the actions proceed under joint case management with common discoveries and productions on overlapping issues and removed the deemed undertaking as between the two proceedings.

Leave was granted for extended examinations for discovery due to the limited availability of a key pilot witness.

The court directed further review of the plaintiffs’ affidavit of documents and reserved remaining issues, including sanctions and costs, for later determination.

Following a trial concerning a possessory land claim, the successful party sought costs and the court initiated a Rule 57.07 inquiry regarding whether the opposing party’s lawyer should personally bear responsibility for wasted costs.

The court first rejected a recusal motion alleging reasonable apprehension of bias, applying the test from Wewaykum and concluding that prior findings and procedural steps did not create a reasonable apprehension of bias.

On the merits, the court applied the two‑step framework from Galganov v. Russell (Township) to determine whether the lawyer caused unnecessary costs and whether a personal costs order was warranted.

The court found the lawyer knowingly or negligently presented an expert witness whose lack of impartiality was evident, resulting in significant wasted trial time.

Exercising its discretion, the court ordered the lawyer to reimburse the client for 20% of the $490,000 costs award and to pay additional costs for the Rule 57.07 hearing.

The appellant, Jetport Inc., appealed a Master's order regarding discovery refusals in three related actions arising from an aviation insurance coverage dispute.

The court allowed the appeal in part, ordering the respondent insurer to answer questions about its course of conduct with other insureds regarding policy exemptions, finding them relevant to the pleadings.

The court also relieved the appellant from answering a question about claims against other third parties, as it was not relevant to mitigation.

However, the court upheld the Master's order requiring the appellant to answer questions about whether its employee sought legal advice from in-house counsel regarding a pilot clause, finding that disclosing the fact of such discussions did not breach solicitor-client privilege.

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.

Following the dismissal of appeals from a master's decision rejecting claims of litigation privilege, the court determined costs.

The responding parties sought partial indemnity costs reflecting significant legal work and extensive materials filed on the appeal.

The court applied the principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable and should reflect the parties’ reasonable expectations.

The court rejected arguments that the large volume of materials filed by the appellant should influence the award and noted that the appellant advanced an arguable legal position without misconduct.

The court awarded $8,000 inclusive of fees, disbursements, and tax to each group of respondents.

The appellants and respondents were involved in a long-standing boundary dispute concerning islands in Lake Huron.

The appellants reached a settlement with one of the defendants and sought to enforce it through consent orders.

The motion judge refused to grant the declarations contemplated by the settlement, finding they could affect the rights of the other defendants in the broader litigation.

The Court of Appeal upheld this decision, confirming that while the settling parties could resolve issues between themselves, they could not do so in a way that affected the other parties.

The appeal was dismissed, though some costs awards from the application were reduced.

Appeal from a Master's order compelling production of communications and answers on discovery despite a claim of litigation privilege.

The appellant argued that emails and a meeting with its insurance broker were created for the dominant purpose of anticipated litigation following denial of insurance coverage for an aircraft crash.

The court held that the appellant failed to establish an evidentiary basis that the dominant purpose of the communications was litigation, noting that the available evidence suggested the discussions focused on advancing the insurance claim rather than preparing for litigation.

The court further held that any common interest litigation privilege between the insured and the broker would have been dissolved once the insured commenced an action against the broker.

The Master's order compelling disclosure was upheld.

The appellant appealed a trial decision regarding a property dispute over waterfront access.

At the outset of the trial, the trial judge disclosed that his wife was a real estate agent specializing in waterfront properties in the area and had clients connected to the dispute, but he declined the appellant's request to recuse himself.

The Court of Appeal found that the trial judge's wife's deep and multi-layered connections to the properties and witnesses created a reasonable apprehension of bias.

The appeal was allowed and a new trial was ordered.

The Transportation Safety Board of Canada appealed an order requiring the production of an aircraft's cockpit voice recorder (CVR) to NAV Canada in the context of civil litigation arising from an airplane crash.

The Board argued the motion judge applied the wrong legal test under s. 28(6) of the Canadian Transportation Accident Investigation and Safety Board Act.

The Court of Appeal dismissed the appeal, finding the motion judge correctly balanced the public interest in the proper administration of justice against the statutory privilege attached to the CVR.

The court upheld the production order, noting the CVR's high relevance and reliability, but reversed a minor order regarding a flight animation that was not properly before the motion judge.

The appellant, a non-settling defendant in a class action arising from an aviation accident, appealed an order approving partial settlements.

The appellant argued that the settlement's bar orders, which prohibited further discovery of the settling defendants, would prejudice its defence and prevent the trial court from properly allocating fault.

The Court of Appeal dismissed the appeal, finding that the bar orders did not prevent the appellant from raising its liability arguments at trial.

The Court also upheld the motion judge's finding that the benefits of the settlement to the class outweighed any remote prejudice to the appellant's procedural rights.

The Association of Ontario Land Surveyors appealed a decision dismissing its application for an order prohibiting the respondents from engaging in the practice of cadastral surveying.

The respondents, who were not licensed under the Surveyors Act, had located existing iron bars, measured distances and angles, and marked property lines for a customer.

The Court of Appeal found that these activities constituted the practice of cadastral surveying and that the respondents had held themselves out as engaging in such practice.

The appeal was allowed, and a prohibition order was granted.