Robert J. Nightingale

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.

The plaintiff sued the defendant municipality after slipping and falling on an icy city sidewalk.

The city had no policy to call in maintenance operators before their regular 7:00 a.m. start time to address icy conditions caused by overnight thaw-freeze cycles, despite having a policy to do so for 8 cm of snow.

The court found the city's policy unreasonable and held the city grossly negligent under the Municipal Act, 2001.

However, the plaintiff was found 50% contributorily negligent for wearing running shoes instead of winter boots and failing to walk around the visible ice.

The moving party sought leave to appeal a $7,500 costs order made against him following a motion to change child support.

The moving party argued the motion judge failed to consider proportionality, his ability to pay, and wasted expenditures.

The Divisional Court dismissed the motion for leave, finding no error in principle or misapprehension of facts by the motion judge, and awarded $750 in costs to the responding party.

The appellant telecommunications carriers appealed a final order of the Ontario Energy Board (OEB) that increased the annual pole attachment charge payable to Hydro One Networks Inc. The appellants argued that the OEB breached procedural fairness by expanding the scope of their review and vary motion to include new evidence and issues, and erred in law by refusing to order production of a pole sharing agreement between Hydro One and Bell Canada.

The Divisional Court dismissed the appeal, finding that the OEB conducted the hearing fairly by granting the appellants' request for a hearing de novo and allowing all parties to present updated evidence.

The Court also held that the OEB's refusal to order production of the actual agreement, while requiring disclosure of its relevant financial impacts, was within its procedural jurisdiction and did not breach natural justice.

The applicant, the common-law spouse of the deceased, sought a declaration of an equal interest in their shared home via constructive trust, and dependency support under the Succession Law Reform Act.

The court granted the constructive trust claim, finding the applicant made significant financial contributions to the home's purchase and upkeep, establishing unjust enrichment.

However, the court dismissed the dependency support claim, ruling it was barred by the six-month limitation period and that the property had already vested in the respondent under the Estates Administration Act.

The applicant pharmacist sought judicial review of a decision by the Discipline Committee of the Ontario College of Pharmacists dismissing his motion to quash disciplinary charges.

The charges arose from a complaint that the College failed to process according to the mandatory statutory requirements under the Health Professions Procedural Code.

Instead of following the complaint process, the College invited the complainant to withdraw her complaint in favour of a Registrar's investigation under s. 75(1)(a).

The Divisional Court held that the College's failure to strictly comply with the statutory complaint procedures deprived it of jurisdiction to refer the matter to discipline.

The application for judicial review was granted, the Panel's decision was quashed, and the College was prohibited from prosecuting the charges.

A father sought child support from a mother, who in turn sought significantly greater access to their child.

The court suspended the mother's child support obligations due to her low income and receipt of Ontario Works benefits.

The mother's request for unsupervised access in her home was denied, with the court maintaining the existing community-setting access due to a history of child protection concerns and a lack of sufficient evidence demonstrating improved parenting capacity.

The court ordered that the mother be granted access to the child's medical and educational records and requested further submissions regarding future access arrangements, particularly for special occasions and once the child commences school.

The defendants were entirely successful on their motion to set aside a noting in default and in opposing the plaintiffs' motion for an adjournment.

The court determined the costs payable to the defendants.

The self-represented plaintiffs sought costs for their cross-examinations, but the court denied this request as they failed to demonstrate an opportunity cost or that they performed work ordinarily done by a lawyer.

The court fixed the costs payable by the plaintiffs to the defendants at $7,000, considering the factors under the Rules of Civil Procedure and the unreasonableness of the plaintiffs' settlement offers.

The defendant ophthalmologist brought a motion for summary judgment to dismiss the plaintiff's medical malpractice action.

The plaintiff alleged that the defendant failed to obtain informed consent for a gold shunt surgery that resulted in a hemorrhage and loss of vision.

The court granted the motion, finding no genuine issue for trial because the plaintiff failed to provide any expert medical evidence to support her claim, relying instead on an inadmissible hearsay affidavit from an articling student.

The defendant's expert evidence established that the standard of care for disclosure was met and that a reasonable person in the plaintiff's circumstances would have consented to the surgery to prevent inevitable blindness.

A subcontractor sued a municipality after being required to remove and replace unapproved streetlight poles installed on a municipal highway project.

The court held there was no contract between the municipality and the subcontractor, no duty of good faith or honest performance owed by the municipality, and no basis to recognize a new duty of care in tort in the tendering context.

Applying the unlawful means tort framework, the court found the municipality merely insisted that its general contractor comply with the tender specifications and did not use unlawful means or intend to cause economic harm.

The action was dismissed, and the court further found the alleged damages were unsupported by reliable evidence.

The self-represented plaintiffs noted the defendants in default for failing to deliver statements of defence in two actions claiming $20 million each for wrongful arrest and Charter breaches.

The defendants moved to set aside the noting in default under Rule 19.03(1).

The court applied the factors from Kisel v. Intact Insurance Company, finding the defendants' delay was reasonable given the context of multiple overlapping actions, there was no prejudice to the plaintiffs, and the plaintiffs engaged in sharp practice by not warning opposing counsel before noting them in default.

The motion was granted and the noting in default was set aside.

The plaintiffs requested an adjournment of the defendants' motion, further document production, and additional cross-examination of the defendants' affiant.

The court noted a history of significant delays caused by the plaintiffs' failure to serve responding materials.

The court found no merit in the plaintiffs' arguments challenging the authority of the defendants' counsel or the affiant's credibility.

Applying the principle of proportionality under Rule 1.04, the court dismissed the plaintiffs' motion to ensure the expeditious resolution of the proceedings.

The moving party mother brought a motion for summary judgment seeking sole custody of the parties' two children.

The responding party father opposed the motion and sought sole custody.

The court found that the children had resided with the mother since separation and were doing well.

The father, who suffered from significant medical and mental health issues, failed to provide specific evidence or a parenting plan to demonstrate a genuine issue requiring a trial.

The court granted summary judgment, awarding sole custody to the mother.

A long‑serving dealership manager brought a wrongful dismissal action after his employer terminated him for alleged alcohol use at work and for allegedly driving company vehicles while impaired.

The employer relied on complaints from staff and a purported zero‑tolerance policy on alcohol consumption during work hours.

The court found the allegations vague, unsubstantiated, and largely unsupported by the evidence, and determined that the alleged policy had never been clearly communicated or incorporated into the employment contract.

Applying the contextual approach to just cause from McKinley and proportionality principles from Dowling, the court held that the conduct did not justify summary dismissal and that progressive discipline would have been appropriate.

The plaintiff was awarded damages based on five months’ reasonable notice.

The applicant, a self-represented individual, sought a declaration that a one-year trespass notice barring him from attending municipal council meetings violated his Charter rights.

The municipality issued the notice following an incident where the applicant questioned a councillor and refused to stop videotaping.

The Superior Court of Justice found that the trespass notice infringed the applicant's freedom of expression under s. 2(b) of the Charter.

The court held that the complete ban was not minimally impairing and could not be justified under s. 1, as there were less intrusive means to maintain order, such as expelling him from specific meetings if he became disruptive.

The application was allowed and the trespass notice was declared invalid.

Following a summary judgment awarding the plaintiff damages for unpaid litigation loans, the plaintiff sought substantial indemnity costs and an order that the defendant's lawyer be held personally liable for a portion of the costs under Rule 57.07(1).

The court awarded partial indemnity costs, finding the matter was not complex and the plaintiff's costs claims were excessive.

The court declined to order costs against the defendant's lawyer personally, despite finding she made careless and misleading statements in her costs submissions, as the high threshold for such an order was not met.

Post-judgment interest was awarded at the contractual rate of 19.5%.

The applicants sought a review and adjustment of the accounts of a private receiver and its legal counsel regarding the windup of a bankrupt company.

The court found that the receiver's fees of over $106,000 and legal fees of over $35,000 were excessive given the simplicity of the receivership, the extensive assistance provided by the debtor, and an initial estimate of $30,000 to $50,000.

The court reduced the receiver's fees to $50,000 and the legal fees to $28,516.79, and ordered the receiver to release $50,000 in surplus funds it had withheld.

The defendant snow removal contractor brought a motion for summary judgment to dismiss the plaintiffs' slip and fall action against it.

The plaintiff slipped and fell on a snow-covered, icy parking lot at an apartment building.

The contractor argued it had fulfilled its winter maintenance obligations.

The court found that the contractor had been hired to remove a significant accumulation of ice but failed to clear the ice between parked cars, where the plaintiff fell.

The court concluded there was a genuine issue requiring a trial regarding whether the contractor breached the standard of care, and dismissed the motion.

The plaintiff lender brought a motion for summary judgment to recover three litigation loans advanced to the defendant during the course of a personal injury action.

The defendant admitted owing the principal on two loans but disputed the contractual interest rate of 18% compounded monthly and alleged breaches of fiduciary duty, lack of disclosure of a conflict of interest, and unconscionability.

The court found the borrower had been fully informed of the loan terms and that the interest rate and structure were standard within the litigation lending industry.

The court rejected the defences, holding that any failure to disclose the lender’s relationship to the borrower’s lawyer caused no compensable loss and did not invalidate the agreements.

Summary judgment was granted enforcing repayment of the loans with interest according to their terms, except that interest was not awarded on one loan where the lender had waived it.

An insurer brought an application seeking a declaration that the respondent’s injuries did not arise from an “accident” within the meaning of s. 3(1) of the Statutory Accident Benefits Schedule.

The respondent had tripped over a motorcycle that had been temporarily parked in a pedestrian walkway at a campsite and sustained serious spinal injuries.

Applying the two‑part purpose and causation test from Amos and subsequent Ontario Court of Appeal jurisprudence, the court held that the temporary parking of the motorcycle constituted the use or operation of an automobile.

The motorcycle’s placement in the walkway was found to be the dominant feature causing the injuries and created an unbroken chain of causation.

The court declared that the incident was an “accident” under the SABs.