Robert J. Nightingale

The applicant sought a declaration that the licensing regime for temporary help agencies under the Employment Standards Act, 2000 is constitutionally invalid.

The respondent raised a preliminary issue regarding the Divisional Court's jurisdiction to grant such declaratory relief.

The court held that under section 2(1) of the Judicial Review Procedure Act, it only has jurisdiction to grant declaratory relief in relation to the exercise of a statutory power, which does not include the enactment of statutory amendments.

The application was transferred to the Superior Court of Justice.

The defendant moved under r. 21.01(3)(d) to strike the plaintiff's second summary judgment motion seeking damages for loss of value of a property arising from a failed real estate transaction, arguing the claim was barred by res judicata and constituted an abuse of process.

A prior summary judgment by Goodman J. had awarded the plaintiff partial damages but dismissed the loss-of-value claim for failure to adduce proper expert valuation evidence.

The court found that both issue estoppel and cause of action estoppel applied, as the same issue had been decided in the prior final proceeding between the same parties.

The court also rejected the plaintiff's argument that r. 20.07 permitted a fresh claim for the same head of damages previously dismissed, holding that the rule applies only to relief not covered in the original motion.

The defendant's motion was granted and the plaintiff's second summary judgment motion was dismissed with costs of $7,500.

The plaintiff sued her former lawyer for negligence and breach of contract arising from an allegedly improvident settlement of her accident benefits claim in May 2014.

The plaintiff claimed the lawyer failed to advise her adequately regarding income replacement benefits, failed to discourage her from settling prematurely, and failed to advise her of the potential for catastrophic impairment designation which would have entitled her to significantly enhanced benefits.

The court found that while the lawyer breached the standard of care in several respects, the plaintiff failed to establish causation because she did not prove she would have acted differently with proper advice.

Additionally, the plaintiff failed to mitigate her damages by not attempting to set aside the settlement when she became aware of the defect.

The court also found the plaintiff failed to establish that she would have been found catastrophically impaired.

The action was dismissed.

The defendants brought a motion to dismiss the plaintiff's professional negligence and negligent misrepresentation claims as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The plaintiff, a suspended lawyer, alleged negligent legal advice and breach of professional obligations by the defendants in defending him against a civil contempt application, which resulted in a jail sentence.

The court found that the plaintiff's action constituted an impermissible collateral attack on prior court orders that had already established his contempt.

The court accepted the defendants' evidence regarding the limited scope of their retainer and dismissed the plaintiff's claims, including a claim for recovery of legal fees, which the court suggested should be pursued under the Solicitors Act.

The plaintiffs brought a motion for summary judgment seeking specific performance of an agreement of purchase and sale for a vacant residential lot.

The defendant vendors had refused to close the transaction, claiming they were unable to remove outstanding writs of execution from title and treating the agreement as terminated.

The court found that the defendants failed to act in good faith to clear the title, as they could have paid the executions from the sale proceeds or paid the funds into court.

The court also found the property was unique to the plaintiffs given its location and affordability.

The plaintiffs' motion for specific performance was granted and the defendants' cross-motion was dismissed.

The applicant sought to quash the Regional Municipality of Niagara's Woodland Conservation Bylaw, arguing it was ultra vires, conflicted with a historic Crown Patent and provincial statutes, and was impermissibly vague.

The applicant contended that the Crown's previous relinquishment of tree reservations meant the municipality could not regulate tree destruction on the property.

The Superior Court of Justice dismissed the application, finding the bylaw was a valid exercise of the municipality's regulatory powers under section 135 of the Municipal Act.

The court held that the Crown Patent did not supersede provincial or municipal authority to regulate land use, and the bylaw's definitions were sufficiently clear.

The applicants sought a declaration that a secondary building on their property had legal nonconforming status for industrial use.

The property was zoned residential in 1985, but the previous owner had operated a small engine repair business there, establishing a legal nonconforming use.

After the previous owner's death in 1995, the industrial use ceased for nearly 12 years, with the building used only for storage until the applicants purchased it in 2007 and began operating a crane business.

The court dismissed the application, finding that the legal nonconforming use had been discontinued and lost long before the applicants purchased the property.

The plaintiffs brought a motion for leave to amend their statement of claim to substitute the plaintiff's professional corporation for the plaintiff personally, after the expiry of the limitation period.

The action arose from a fire loss claim under an insurance policy.

The court found that naming the plaintiff personally rather than his professional corporation was a misnomer.

Applying the test for misnomer, the court granted the motion, noting that the defendants were aware of the proper plaintiff from the outset and suffered no non-compensable prejudice.

The defendant plastic surgeon brought a motion for summary judgment to dismiss a medical negligence and lack of informed consent action arising from an abdominoplasty.

The plaintiff alleged the defendant failed to meet the standard of care and failed to disclose the risk of skin necrosis.

The court granted the defendant's motion, finding no genuine issue for trial as the plaintiff failed to provide expert evidence establishing a breach of the standard of care or causation.

Furthermore, the court used its enhanced fact-finding powers to conclude that the material risks were disclosed and that a reasonable person in the plaintiff's position would have proceeded with the surgery.

The plaintiff, an experienced horseman and stable operator, suffered severe facial injuries while leading the defendant's horse.

There were no witnesses to the incident.

The plaintiff sued the defendant in strict liability (scienter) and negligence, alleging the horse had a dangerous propensity to rear and that the defendant used improper training techniques.

The court dismissed the action, finding no evidence that the horse had a prior dangerous propensity to rear vertically or that the defendant's training methods were negligent.

The court also assessed damages provisionally and held that the plaintiff's illegal immigration status did not bar his claim under the ex turpi causa doctrine.

The plaintiff, a 73-year-old radio broadcaster with 20 years of service, was terminated without cause by the defendant.

The plaintiff brought a motion for summary judgment seeking 30 months' notice, while the defendant argued for 18 months and alleged a failure to mitigate.

The court awarded a 21-month notice period, finding no exceptional circumstances to justify exceeding 24 months.

The court also found that the defendant failed to prove the plaintiff did not mitigate his damages, considering his age, specialized skills, and serious medical issues following termination.

The plaintiff, as estate trustee, moved for summary judgment against defendant Emanuel Cabral for damages arising from his failure to close an agreement of purchase and sale for the estate's property.

Defendant Sherif Behiry was noted in default.

The court found that the defendant Cabral breached the agreement and failed to demonstrate that the plaintiff did not reasonably mitigate her damages, despite expert opinion suggesting a longer relisting period.

The court granted summary judgment to the plaintiff against Cabral and default judgment against Behiry for the difference in sale price and associated expenses.

Cabral's counterclaim was dismissed by consent.

The applicant husband sought an equalization payment and occupation rent following a 39-month cohabitation and marriage.

The court determined several issues regarding the calculation of net family property, including the treatment of a pre-marriage deposit on the matrimonial home, a debt owed by the husband to his former spouse, notional disposition costs for the wife's condominium in China, and whether a vehicle and funds from the wife's mother were excluded gifts or loans.

The court found that an equal division of net family property would be unconscionable under s. 5(6) of the Family Law Act due to the short duration of the marriage and the disproportionate increase in the value of the wife's foreign property, which was unrelated to the marriage.

The husband's equalization payment was reduced from $93,499 to $65,500, and his claim for occupation rent was dismissed.

The applicant wife sought a divorce, equalization of net family property, and spousal support following a 42-year relationship.

The respondent husband had declared bankruptcy after receiving a large severance package and dissipating assets.

The court determined the valuation date, ordered an equalization payment of $78,430, and directed the transfer of 50% of the respondent's remaining LIRA and RRSP accounts to partially satisfy the equalization and support arrears.

The court also awarded a $25,000 lump sum for retroactive spousal support and $1,900 per month in ongoing spousal support due to the applicant's medical disability and the traditional nature of the marriage.

The defendant driver brought a motion for summary judgment to dismiss the plaintiff passenger's action and the co-defendants' cross-claim against him following a motor vehicle collision.

The moving party argued the co-defendant lost control of his vehicle on a snow-covered highway and crossed into the moving party's lane on an on-ramp.

The co-defendant argued the collision occurred in the highway's right lane during a merge.

Applying the summary judgment framework, the court weighed the evidence, including independent witness testimony and accident reconstruction evidence, and found the moving party's version of events reliable.

The court concluded there was no genuine issue requiring a trial regarding the moving party's liability and dismissed the claims against him.

The applicant sought declarations for a prescriptive easement over a portion of an adjoining property for a vehicle turnaround area and for ownership by adverse possession of a narrow strip of land on another adjoining property.

The court found that the applicant established all five criteria for a prescriptive easement, demonstrating continuous, uninterrupted, open, and peaceable use for over 20 years without permission, and that the use was reasonably necessary for the enjoyment of the dominant tenement.

The court also found that the applicant established adverse possession of the strip of land for over 10 years prior to the land's conversion to Land Titles.

Both declarations were granted in favour of the applicant.

The defendants, a licensed service provider and its owner, brought a motion to strike the plaintiff employee's statement of claim.

The plaintiff alleged she was assaulted by a minor resident at the defendants' group home and claimed damages for negligence, breach of contract, and breach of the Occupiers' Liability Act.

The defendants argued they owed no duty of care to the plaintiff because their paramount statutory duty was to the child.

The court dismissed the motion, finding it was not plain and obvious that the employer owed no common law duty of care to provide a safe workplace for its employee, and that such a duty would not necessarily conflict with its statutory duty to the child.

The defendant Ceeps-Barneys Limited, operating as The Ceeps, brought a motion for summary judgment to dismiss a personal injury action against it.

The plaintiffs alleged the Ceeps breached its common-law and statutory duties as a commercial host and occupier, following an assault on the plaintiff Kyle Schiavone by co-defendant Brenden Woods outside the establishment.

The court dismissed the motion, finding genuine issues requiring a trial regarding the Ceeps' duty of care, breach, and the foreseeability of harm.

The court also noted that granting partial summary judgment would risk duplicative proceedings and inconsistent findings, as the action would proceed against other defendants regardless.

The plaintiff sought damages for injuries sustained in a rear-end motor vehicle accident.

Two years after the accident, the plaintiff suffered a severe stroke that left him totally disabled.

The central issue was whether the accident caused the stroke due to the plaintiff's alleged increased smoking and sedentary lifestyle following the collision.

The court found the stroke was an unrelated intervening event, relying on expert evidence that the plaintiff's heavy smoking predated the accident and his lifestyle was not sufficiently sedentary to cause a deep vein thrombosis.

The court awarded $100,000 in general damages for the accident-related chronic pain and mechanical back issues, but denied future income loss and most future care costs, as the plaintiff's total disability was caused by the non-compensable stroke.

The appellant landlord appealed a Small Claims Court decision dismissing her claims for utility arrears, maintenance charges, and rent against the respondent tenant.

The parties had previously appeared before the Landlord and Tenant Board (LTB), which issued a consent order declining jurisdiction over current claims but retaining jurisdiction over future invoices.

The Divisional Court found the trial judge erred in law by failing to treat the LTB order as final and binding.

The court awarded the appellant $292 for utility arrears incurred prior to the LTB order, upheld the dismissal of the maintenance charges and older utility claims due to the limitation period, and awarded the appellant costs of the trial.