Stephen Sheldoon Appotive

The defendant Ministry of the Environment moved to strike the plaintiff's negligence claim arising from an oil spill clean-up, arguing it owed no private law duty of care.

The court dismissed the motion, finding that once the Ministry chose to exercise its discretionary powers under the Environmental Protection Act and became involved in the remediation, it was obliged to do so without negligence.

The court held that the pleaded facts established sufficient proximity under the Anns test and that no policy reasons negated a duty of care at the pleadings stage.

The plaintiffs brought an action for damages and injunctive relief in nuisance against their neighbours, alleging that smoke and odour from the defendants' outdoor wood burning furnace interfered with the use and enjoyment of their property.

The plaintiffs suffered from severe, pre-existing respiratory illnesses.

The court applied the two-part test for private nuisance from Antrim Truck Centre, finding that while the interference might be substantial given the plaintiffs' special vulnerabilities, it failed the objective test of being unreasonable to an ordinary occupier.

The action was dismissed.

Following settlement of a serious personal injury action at the defendant's policy limits, the parties asked the court to fix costs on a partial indemnity basis.

The plaintiffs sought substantially higher costs based in part on a percentage-of-recovery approach, while the defendant argued for a lower figure based on estimated hours and disputed disbursements.

The court held the settlement agreement required a Rule 57 partial indemnity assessment rather than a percentage-of-settlement methodology.

Applying those factors, the court fixed fees at $70,000 and accepted the defendant's position on disbursements in the absence of reply submissions, assessing total costs at $87,075 plus HST.

The respondent farmer was injured when his uninsured all-terrain vehicle (ATV) was struck from behind by a truck on a public road.

He sued the truck driver, the truck owner, and his own insurer for damages and statutory accident benefits.

The motion judge found the ATV was a 'self-propelled implement of husbandry' exempt from compulsory insurance.

The Court of Appeal reversed, holding that the ATV was an off-road vehicle that required insurance when operated on a public road.

Consequently, the respondent's action was statute-barred and his claim for statutory accident benefits was foreclosed.

The applicant sought court assistance to compel financial disclosure from corporations associated with the respondent within the context of a family law arbitration.

The arbitrator had previously ordered disclosure but concluded the respondent had not fully complied and lacked jurisdiction to compel production from non-party corporations.

The court ordered the respondents to produce the information listed in an exhibit and required the applicant to execute a confidentiality agreement covering all disclosed materials.

The court upheld the arbitrator’s direction that the respondent bear the costs of locating and compiling disclosure while the applicant would pay photocopying at the Legal Aid rate.

The applicant was found substantially successful and awarded partial costs of the motion.

The plaintiffs brought motions to correct errors regarding the identity of defendants and legal representation in a negligence action arising from a residential oil tank installation that allegedly caused a leak.

Due to mistaken assumptions about a business name, the statement of claim was served on a different individual who then retained counsel and filed a defence in the name of another defendant.

The court considered whether to strike the defence, add the correct party, and extend the time for service beyond the ordinary six‑month period.

Applying the principles governing extensions of time and misnomer, the court held that relief should be granted because the plaintiffs intended to sue the installer from the outset and no real prejudice to the affected defendant was demonstrated.

The defence filed without authority was withdrawn, the time for service was extended, and the additional defendant was added.

The defendants brought a motion under rule 21.01(1) of the Rules of Civil Procedure seeking determination of questions of law before trial.

They argued that the plaintiff farmer’s action for damages arising from a motor vehicle collision was barred under s. 267.6(1) of the Insurance Act because he operated an uninsured all‑terrain vehicle (ATV) on a public road, and that his claim for statutory accident benefits was barred by s. 30(1)(a) of the Statutory Accident Benefits Schedule.

The court held that the ATV, used exclusively in farming operations, qualified as a “self‑propelled implement of husbandry” under the Highway Traffic Act.

As such, it was excluded from the definition of motor vehicle and from Ontario’s compulsory automobile insurance regime.

The plaintiff was therefore not barred from suing the negligent driver and his claim for statutory accident benefits was not foreclosed.

Following two family law motions in which the applicant was largely successful, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs of $20,000 while the respondent argued for partial indemnity of approximately $11,540.

The court considered the respondent’s partial success on a custody issue, some overlap in legal work by junior counsel and a law student, and the respondent’s litigation conduct including failure to comply with prior orders and misleading conduct regarding the calculation of matrimonial home sale proceeds.

After applying reductions but emphasizing the applicant’s overall success and the respondent’s conduct, the court fixed costs on an all-inclusive basis.

On a family law motion concerning spousal support, the responding party sought termination of support while the moving party’s income had substantially increased.

The court declined to terminate support on the motion, holding that termination should be determined at trial on a full evidentiary record.

Applying the Spousal Support Advisory Guidelines and considering the parties’ incomes, needs, means, and custodial arrangements for the children, the court adjusted the quantum of spousal support beginning January 2010.

The court ordered stepped amounts reflecting the parties’ financial circumstances and prior reductions, and directed counsel to calculate any resulting overpayment.

The respondent brought a motion to change seeking custody of a teenage child, variation of child support, termination of spousal support, and related relief.

The court granted custody of the child to the father because the child had resided with him for an extended period and custodial authority should reflect the existing residential arrangement.

The court refused to appoint the Office of the Children’s Lawyer regarding the two younger children due to extensive prior assessments and the father’s failure to comply with counselling and parenting program requirements intended to address parental alienation concerns.

Child support was varied using a set-off approach reflecting that one child lived with the father and two with the mother, based on updated income figures.

Summary judgment was also granted to the mother for unpaid proceeds from the sale of the matrimonial home.

In a chiropractic malpractice action alleging negligent treatment causing serious injury, the plaintiffs brought a motion seeking production of raw data underlying a population-based study relied upon by a defence expert and extensive disclosure relating to another defence medical expert.

The court held that the underlying research data was not in the possession, power, or control of the defendants or their expert and could only be obtained through a proper third-party motion under the Rules of Civil Procedure.

Limited procedural directions were issued requiring the defendants to ask the expert to use best efforts to obtain the data and to confirm the existence of a video recording from the defence medical examination.

Most of the requested relief, including production of the expert’s hard drive and extensive materials from the expert’s curriculum vitae, was dismissed.

A law firm sued a departing non-equity partner and his new firm after approximately 60 personal injury contingency files were transferred when the lawyer left the firm.

The plaintiff sought a constructive trust over future contingency fees based on unjust enrichment and breach of fiduciary duty.

The defendants moved for summary judgment dismissing the equitable claims, while the plaintiff sought partial summary judgment for work in progress and disbursements on settled files.

The court held that the unjust enrichment claim raised issues requiring a full trial because contractual documents and statutory arguments did not clearly constitute a juristic reason defeating the claim.

However, the court granted summary judgment dismissing the breach of fiduciary duty allegations, finding no evidentiary basis for the alleged breaches.

The appellant franchisor appealed a trial judgment finding it breached a franchise agreement and the statutory duty of good faith under the Arthur Wishart Act.

The trial judge found the franchisor deliberately withheld information from the franchisee regarding a new head lease and denied the franchisee's conditional right of renewal.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation of the contract, her decision to treat the individual franchisee and his corporation as a single entity, and the damages awarded for breach of contract, breach of good faith, and mental distress.

The appellant father appealed and the respondent mother cross-appealed the trial judge's orders regarding access, property interests, and costs.

The father did not attend the hearing and advised he no longer wished to be involved.

The Court of Appeal allowed the cross-appeal in part, modifying the access order to be as requested by the 14-year-old child, given fresh evidence that she had not seen her father in three years and did not want access.

The court dismissed the cross-appeal regarding property interests and costs, finding no error in the trial judge's application of resulting trust and partnership principles, nor in the discretionary costs award.

The appellants appealed a summary judgment enforcing a mortgage guarantee, arguing the cause of action was barred by the 10-year limitation period under the Limitations Act because the mortgage fell into default in 1991.

The Court of Appeal dismissed the appeal, finding that a 1994 mortgage renewal brought the mortgage into good standing and that subsequent payments by the debtor restarted the limitation period.

Although the motion judge erred in her treatment of the appellant's signature evidence, this did not affect the correctness of the disposition.

The appellant and her husband jointly applied for a line of credit.

The bank subsequently communicated only with the husband, increased the credit limit, and issued an ABM card, which the husband used to access funds before going bankrupt.

The appellant denied liability, arguing the bank acted unilaterally.

The trial judge found the appellant liable based on the documents she signed, which permitted the bank's actions.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact or application of the law.

The applicant was severely injured in a 1991 motor vehicle accident and received statutory accident benefits for 156 weeks.

The insurer terminated benefits, arguing she no longer met the test of being continuously prevented from engaging in substantially all of her normal activities.

The arbitrator found that while her physical injuries had healed, she continued to suffer from cognitive deficiencies, dissociative states, and chronic fatigue that severely limited her ability to function independently, maintain her home, or engage in social and parental activities.

The arbitrator concluded she met the post-156 week test and ordered the insurer to pay ongoing weekly and child care benefits.

The applicant was injured in a motor vehicle accident while a passenger on a bus.

She received weekly income benefits until they were terminated by the insurer.

The applicant sought reinstatement of weekly income benefits and payment for a secretarial course as a rehabilitation expense.

The arbitrator found that the applicant did not suffer a substantial inability to perform her pre-accident employment immediately following the termination of benefits, but that a subsequent brief return to work exacerbated her condition, entitling her to benefits thereafter.

The claim for the cost of the secretarial course was dismissed as the applicant failed to prove it was a reasonable and suitable rehabilitation expense given her physical limitations.