Stephen C. Nadler

The Ontario Court of Appeal dismissed David Jarvis’s appeal regarding his entitlement to exercise stock options after resigning as a director of 1CM Inc. The court found that the corporate documents clearly required Jarvis to be a director at the time of exercising the options.

Jarvis failed to demonstrate any error in the application judge’s interpretation of the plan.

The respondent was awarded costs of $15,000.

The Ontario Land Tribunal held a case management conference regarding an appeal by 2541005 Ontario Limited against the Township of Oro-Medonte's Zoning By-law No. 2020-046, which restricts the growing of cannabis and industrial hemp crops in agricultural zones.

On consent of the parties, the Tribunal issued a Procedural Order setting the schedule and rules for an 8-day video hearing commencing on July 15, 2024.

The applicant brought a motion to dismiss the appellant's appeal of a zoning by-law amendment that permitted a 48-storey mixed-use building.

The appellant argued that the by-law failed to establish appropriate setbacks from the adjacent highway corridor.

The Tribunal found that the required setbacks were under the exclusive jurisdiction of the Ministry of Transportation, and the appeal did not disclose any apparent land use planning ground upon which the Tribunal could allow the appeal.

The motion was granted and the appeal was dismissed without a hearing.

The moving party sought leave to appeal a review decision of the Chair of the Ontario Land Tribunal, which had set aside a previous tribunal decision and ordered a rehearing regarding a zoning by-law amendment that restricted cannabis and hemp cultivation.

The moving party argued the Chair breached procedural fairness by failing to provide notice or an opportunity to respond, and by raising a new ground of review.

The Divisional Court found that the review decision was a final order, not interlocutory, but dismissed the motion for leave to appeal.

The Court held that the Chair followed the established rules, the moving party had actual notice but chose not to respond, and the issues raised were not of sufficient general or public importance to merit an appeal.

The Tribunal considered a motion to settle a site-specific appeal of a municipal-wide zoning by-law regulating cannabis production and processing facilities.

The Tribunal found that it could approve the site-specific settlement prior to hearing the remaining municipal-wide appeal because the settlement instrument could stand alone and would not pre-determine the outcome of the broader appeal.

Based on uncontroverted expert planning evidence, the Tribunal concluded that the site-specific amendment represented good planning, was consistent with the Provincial Policy Statement, and conformed to applicable official plans by balancing agricultural promotion with the protection of sensitive land uses.

The settlement was approved and the remaining municipal-wide appeal was scheduled for a future hearing.

Carmel Pharms brought a motion to separate its appeal of a zoning by-law amendment from a consolidated hearing with two other appellants, following a settlement with the Township of Oro-Medonte.

The Tribunal initially denied the motion due to concerns about fair adjudication for the remaining appellants.

After the parties collaborated to revise the draft order, the Tribunal rescinded its initial decision, granted the motion to separate the appeal, and approved the site-specific zoning by-law amendment for Carmel Pharms based on uncontested expert planning evidence.

The appellants appealed the Township of Oro-Medonte's passage of Zoning By-law Amendment No. 2020-046, which sought to regulate cannabis production and processing facilities by restricting them to industrial zones and imposing a 150-metre setback from sensitive land uses.

The appellants argued that the by-law effectively prohibited the outdoor cultivation of cannabis and industrial hemp in prime agricultural areas, contrary to provincial policies.

The Tribunal found that the by-law was inconsistent with the Provincial Policy Statement 2020, as it failed to protect prime agricultural areas for long-term agricultural use and restricted normal farm practices.

The Tribunal also found that the by-law did not conform to the Growth Plan or the applicable Official Plans.

Consequently, the Tribunal allowed the appeals and directed the municipality to repeal the by-law.

The plaintiffs brought a motion to maintain a certificate of pending litigation (CPL) on a property owned by the defendants.

The plaintiffs had paid deposits for pre-construction townhomes, but the defendants made no progress on the development and attempted to sell the property to a third party.

The defendants argued the CPL should be discharged based on a 'no registration clause' in the agreements of purchase and sale.

The court found a triable issue regarding an interest in land and held that the equitable factors favoured maintaining the CPL to protect the plaintiffs' investments, despite the contractual prohibition.

The Township of Oro-Medonte brought a motion seeking directions in an appeal of a zoning by-law amendment regulating cannabis production facilities.

The Township sought to exclude an issue regarding whether the by-law restricted normal farm practices, arguing the Normal Farm Practices Protection Board had exclusive jurisdiction.

The Township also sought to bifurcate the appeals and consolidate one appellant's appeal with a separate Development Charges Act appeal.

The Ontario Land Tribunal held that it had jurisdiction to consider whether the by-law restricted normal farm practices as part of its planning analysis, though it could not issue a formal declaration of contravention under the Farming and Food Production Protection Act, 1998.

The Tribunal dismissed the requests to bifurcate the appeals and to consolidate the development charges appeal, finding that consolidation of the zoning appeals was more efficient and the development charges appeal involved distinct issues.

The moving parties (debtors) sought leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act from an order approving a court-appointed receiver's proposed sale process and list prices for five commercial properties.

The debtors argued the motion judge failed to apply the correct legal test (the Soundair test) and was unduly deferential to the receiver's business judgment.

The Court of Appeal dismissed the motion for leave, finding that the motion judge had implicitly applied the Soundair test, the proposed appeal lacked prima facie merit, did not raise an issue of general importance, and would unduly hinder the progress of the receivership proceedings.

The defendant purchaser brought a motion to stay the plaintiff vendor's civil action in favour of arbitration, relying on the arbitration clause in the Tarion Addendum to their agreement of purchase and sale for a new home.

The plaintiff conceded the existence and scope of the arbitration agreement but argued the court should refuse the stay due to undue delay, waiver, and because the matter was proper for summary judgment.

The court found no waiver or undue delay, noting the action had not progressed significantly past pleadings.

The court also held the case was not proper for summary judgment as it involved disputed facts and issues of anticipatory breach.

The motion to stay the action was granted.

The moving party brought a motion to discharge a certificate of pending litigation (CPL) that was granted to the responding party ex parte.

The court found that the responding party failed to make full and fair disclosure of material facts on the ex parte motion, including provisions in the agreement of purchase and sale prohibiting the registration of a CPL and disavowing any legal or equitable interest in the property.

The court also found that the property was not unique to the responding party, as it was purchased as an investment.

The motion was granted, the CPL was discharged, and costs were awarded to the moving party.

The applicant sought relief from forfeiture arising from an agreement of purchase and sale after breaching a term requiring the vendor's prior written consent to list or sell the townhouse.

The applicant had listed and sold the property without consent, leading the respondent vendor to terminate the agreement and forfeit deposits and occupancy fees.

The court dismissed the application, finding the applicant's conduct, the gravity of the breach, and the disparity between the forfeited property value and damages did not warrant relief from forfeiture.

Furthermore, the retention of the deposit and occupancy fees was not found to be unconscionable, considering the commercial context and the applicant's sophistication.

This endorsement clarifies the administrative nature of scheduling urgent matters before the Ontario Superior Court of Justice during the COVID-19 pandemic.

The court emphasized that the Chief Justice's Notice to the Profession provides guidelines for urgent services, not statutory rules, and that the scheduling process is an administrative function.

Submissions on the merits or the issue of urgency are not required or helpful once a matter has been scheduled, as they clog court resources and are not part of the legal dispute between parties.

The court scheduled the applicant's proposed matter for an urgent case conference, dismissing the respondent's subsequent submissions against urgency.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits from her insurer.

The insurer terminated her income replacement benefits and denied medical and rehabilitation benefits, maintaining for nearly three years that her injuries fell within the Minor Injury Guideline (MIG).

The arbitrator found that the applicant suffered a substantial inability to perform her pre-accident employment and, post-104 weeks, a complete inability to engage in suitable employment due to chronic pain.

The arbitrator granted the claimed income replacement benefits, medical benefits, and costs of examinations.

Furthermore, the arbitrator awarded a $25,000 Special Award against the insurer, finding that it had unreasonably delayed and denied benefits by relying on patently flawed medical reports and ignoring credible evidence of the applicant's chronic pain.

The insurer appealed an arbitrator's preliminary decision that allowed the insured to proceed with her claim for non-earner benefits despite missing the two-year limitation period to add the issue to arbitration.

The Director's Delegate allowed the appeal, finding that while the insured validly added the non-earner benefits issue to mediation within the two-year period, she failed to add the issue to her application for arbitration before the limitation period expired.

Applying the Court of Appeal's decision in Cornie, the limitation period continued to run despite the lack of a mediator's report, precluding the claim from proceeding to arbitration.

The applicant sought non-earner benefits following a motor vehicle accident.

The insurer denied the benefits based on an independent chiropractic examination.

The insurer argued that the applicant failed to commence a mediation proceeding within the two-year limitation period under section 56 of the Statutory Accident Benefits Schedule.

The applicant had requested to add the issue to an existing mediation via letter before the limitation period expired, which was common practice, but did not file a formal Application for Mediation until after the deadline.

The Arbitrator applied the Dispute Resolution Practice Code's rules on broad interpretation and defects in form, finding that the letter validly commenced the mediation proceeding.

The applicant was not barred from proceeding with her claim.

The appellant appealed a summary judgment enforcing a California default judgment against him.

He argued that the California court's jurisdiction was obtained by fraud, specifically alleging that the complaint falsely claimed he signed certain contracts.

The Court of Appeal dismissed the appeal, finding a real and substantial connection between the causes of action and California, and concluding that the appellant failed to present evidence of fraud going to jurisdiction.

The court held that the appellant was improperly attempting to re-litigate facts already determined by the default judgment.

The appellant appealed the dismissal of her application for an oppression remedy under s. 248 of the Business Corporations Act.

The dispute centered on a numbered company incorporated by the appellant's late husband to hold a Florida condominium, with shares held by the appellant and the husband's children.

The motion judge found that the husband had loaned money to the corporation and had not forgiven the loan prior to or upon his death.

The Divisional Court upheld the motion judge's findings that the loan remained an obligation of the corporation and that the failure of the estate to forgive the loan did not constitute oppressive conduct by the corporation or its directors.

The appeal was dismissed.

The appellant appealed two orders of a Master dismissing its action and ordering payment out of court.

The action, which was over seven years old, had been transferred to Case Management after years of dormancy.

The Master found the appellant had repeatedly breached orders regarding security for costs, delivery of a release, and provision of damages calculations and documentation.

The Divisional Court held that the Master did not err in principle or in the exercise of his discretion under Rules 60.12 and 77.10(7) to dismiss the action.

The appeal was dismissed with costs to the respondent on a partial indemnity scale.