Susan G. Himel

The moving party sought to transfer a contract rectification action from Toronto to Ottawa under Rule 13.1.02 of the Rules of Civil Procedure.

The dispute arose from a federal government wireless services transition contract negotiated and administered in the National Capital Region, and the material witnesses for both sides were located there.

Applying a holistic balancing of the venue-transfer factors, the court held that the moving party had shown Ottawa was significantly better than Toronto and that transfer was desirable in the interests of justice.

The motion was granted, subject to approval of the Regional Senior Justice for the East Region, with costs left for submissions if necessary.

The moving defendants sought to transfer a malicious prosecution and Charter damages action from Toronto to Hamilton for trial.

Applying the holistic Rule 13.1.02 analysis, the court held that although the underlying events and local interest were centred in Hamilton, the plaintiff’s witnesses and counsel were based in Toronto or outside Hamilton, and the proposed venue was not shown to be significantly better.

The court also treated local pre-trial publicity as a relevant contextual consideration when assessing the interests of justice, without making any finding that a fair Hamilton jury trial was impossible.

The motion was dismissed and the responding plaintiff received fixed costs of $10,000 inclusive.

The defendant insurer moved to transfer a motor vehicle accident action from Toronto to Oshawa and to restore the action to the trial list.

Although the accident occurred near Clarington and the plaintiffs resided east of Oshawa, the parties' experts and most witnesses were based in the Toronto area, and counsel were located in Toronto and Milton.

Applying the holistic venue transfer analysis under Rule 13.1.02, the court held that Toronto offered cost savings and efficiencies and that Oshawa was not significantly better.

The action was restored to the trial list on consent, and the transfer motion was denied.

The applicant, the sole life beneficiary of a Henson trust established by his mother's will, applied to declare the gift over of the trust residue void for uncertainty and to terminate the trust under the rule in Saunders v. Vautier.

The respondent estate trustee opposed the application and sought a capacity assessment of the applicant.

The court held that the gift over to 'worthy individuals' was void for uncertainty, but found that the resulting intestacy would not take effect until after the applicant's death.

Consequently, the applicant could not terminate the trust as he did not hold the full beneficial interest.

The court also declined to order a capacity assessment, finding no jurisdiction under the Courts of Justice Act in these circumstances.

Following the granting of summary judgment dismissing the plaintiff’s action against both defendants, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs relying on Rule 49 settlement offers and the complexity of the litigation.

The court reviewed the governing principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including proportionality, the result obtained, the conduct of the parties, and the offers to settle.

Although the defendants had made settlement offers and were fully successful, the court found no reprehensible conduct by the plaintiff warranting substantial indemnity costs.

Exercising its discretion, the court fixed costs payable by the plaintiff at $30,000 to one defendant and $18,000 to the other.

Following a successful trial establishing repayment obligations under promissory notes, the plaintiffs sought costs on a full indemnity basis based on a contractual costs clause and an unaccepted Rule 49 offer to settle.

The defendant argued that the claim for costs was excessive and unsupported by documentation and that the action was straightforward.

The court reviewed the principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Considering the plaintiffs’ success, the favourable Rule 49 offer, and the defendant’s litigation conduct, the court concluded that substantial indemnity costs were justified.

However, applying proportionality and reasonableness, the court reduced the amount claimed and fixed costs at a lower figure.

Following a lengthy family law trial involving a motion to vary a historic support and equalization order and related enforcement issues, the court determined the appropriate costs disposition.

Although the applicant was largely successful in resisting the variation motion, the court found both principal litigants behaved unreasonably throughout the proceedings, including failing to make proper settlement offers, prolonging litigation, and failing to provide adequate financial disclosure.

As a result, neither party received costs against the other.

A co‑respondent who successfully obtained an order removing historic court orders from title to her residence was awarded partial indemnity costs despite failing to meet the technical requirements for full recovery under the Family Law Rules settlement offer provisions.

The court exercised discretion under Rule 24 to award $40,000 inclusive of disbursements and HST.

Following a successful appeal that certified a class proceeding after the appellant re-cast its case, the court determined the costs of the appeal and the motion below.

The appellant was awarded $45,000 for the appeal as the successful party.

However, because the appellant completely re-formulated its case on appeal, prejudicing the respondent at the motion stage, the court set aside the motion judge's $200,000 costs award to the respondent and ordered that neither party receive costs for the motion below.

The parties consented to an order fixing the costs of the appeal.

The court ordered the appellants to pay $15,000 in costs to the respondent.

The appellants appealed a decision of the Ontario Securities Commission finding they perpetrated a fraud relating to securities and breached their duties as investment fund managers.

The appellants argued the Commission lost jurisdiction when a single commissioner proceeded with the sanctions hearing after the other commissioner's appointment expired.

The Divisional Court dismissed the appeal, holding that the Statutory Powers Procedure Act permitted the Commission to override quorum requirements to proceed expeditiously.

The Court also upheld the Commission's findings of fraud, concluding that subjective awareness of the intended consequences could be inferred from the appellants' actions, and affirmed the sanctions imposed, including significant disgorgement orders.

The applicants sought to depart from the normal rule that costs follow the event after their application for judicial review of a Compensation Fund Committee decision was dismissed.

They argued that they had already suffered financial loss due to a lawyer's misappropriation, that the case involved a novel public interest issue, and that awarding costs would run contrary to the purpose of the Compensation Fund.

The Divisional Court rejected these arguments, finding the issues were not novel and that the applicants chose to pursue the judicial review knowing the costs risks.

The court awarded partial indemnity costs of $25,000 to the respondent Law Society.

The plaintiff appealed the dismissal of its motion to certify a class action against the defendant, which manages Ontario's electronic land registry system.

The proposed class action alleged that the defendant's database constituted copyright infringement of plans of survey.

On appeal, the plaintiff recast its case by revising the class definition and common issues.

The Divisional Court allowed the appeal, finding that the plaintiff could recast its case absent non-compensable prejudice to the defendant.

The court held that the motion judge erred in requiring evidence that two or more persons were desirous of pursuing the claim to satisfy the identifiable class criterion.

The revised class definition and common issues met the certification criteria under the Class Proceedings Act, 1992.

The homeowner appealed a decision of the Property Standards Committee confirming a municipal order requiring pruning of a hazardous tree located on the appellant’s property.

Evidence showed the tree’s trunk and roots straddled the boundary of three adjacent properties, raising issues of shared ownership under s. 10 of the Forestry Act.

The court conducted a de novo hearing under s. 15 of the Building Code Act and considered whether the maintenance order could properly require a single owner to bear the entire cost.

The court held that where a tree may be a boundary tree shared among adjoining properties, it was inappropriate to impose sole responsibility for maintenance on one owner without evidence of the neighbouring owners’ positions.

The committee’s decision was rescinded and the matter left to the municipality to address with all affected owners.

The appellant, an IT consulting firm, appealed a Small Claims Court decision finding it liable for negligent misrepresentation.

The appellant had offered the respondent an independent contractor position at Loblaw, but failed to disclose that the position had not yet received final approval.

The respondent left another contract to accept the offer, which was subsequently withdrawn.

The Divisional Court upheld the trial judge's finding that the appellant made a negligent misrepresentation and that the respondent reasonably relied on it to his detriment.

The Court also held that the entire agreement clause in the contract did not preclude liability, applying the Tercon approach to find the clause unconscionable given the informational imbalance and lack of notice.

The appellant recruitment agency appealed a Small Claims Court judgment finding it liable for negligent misrepresentation.

The agency had offered the respondent an independent contractor position at Loblaw, representing it as a certainty, which caused the respondent to turn down another job offer.

The position at Loblaw was never finalized.

The Divisional Court upheld the trial judge's finding that the agency made a negligent misrepresentation and that the entire agreement clause in the contract did not preclude liability, as it was unconscionable under the Tercon approach and the respondent was an unsophisticated party who was not given notice of the clause.

The appeal was dismissed.

The applicants sought judicial review of a decision by the Law Society of Upper Canada's Compensation Fund Committee, which denied their claims for compensation following the misappropriation of funds by their lawyer.

The Committee found that the lawyer had received the funds in the capacity of a banker rather than a lawyer, and thus the losses were not in connection with his professional business.

The Divisional Court dismissed the application, holding that the Committee's interpretation of the Law Society Act and its application of the Guidelines were reasonable.

The moving party sought leave to appeal a decision of the Ontario Municipal Board (OMB) Chair dismissing their Request for Review of a Hearing Officer's decision.

The Hearing Officer had approved an Official Plan amendment allowing residential development on lands, parts of which were designated as a cultural heritage landscape.

The moving party argued the OMB erred by not giving deference to the factual findings of the Conservation Review Board (CRB) regarding the extent of the heritage landscape, raising issue estoppel and abuse of process.

The Divisional Court dismissed the motion for leave, finding no question of law, no good reason to doubt the correctness of the OMB decision, and that the matter was not of sufficient general importance.

The appellant utility company appealed a decision of the Ontario Energy Board that reclassified $22 million in earnings from a transportation risk alleviation mechanism as 'gas transportation costs' rather than 'utilities revenue'.

The appellant argued this constituted impermissible retroactive ratemaking.

The Divisional Court dismissed the appeal, finding that the standard of review was reasonableness and that the Board had the authority under section 36 of the Ontario Energy Board Act to ensure rates were just and reasonable, particularly given the appellant's lack of disclosure regarding the nature of the revenues.

The self-represented appellant tenant requested an adjournment of his appeal because he had not received the hearing transcript and lacked assistance from an amicus.

The Divisional Court denied the request, noting that a previous order had made the hearing date peremptory.

The applicant sought judicial review of the Registrar of Motor Vehicles' decision to indefinitely suspend his driver's licence following his third impaired driving conviction.

The applicant argued that his first conviction, which occurred when he was a youth, could not be used to calculate the suspension under the Highway Traffic Act due to the provisions of the Youth Criminal Justice Act.

He also argued that the Registrar was estopped from imposing the indefinite suspension because he had previously received an erroneous notice of a three-year suspension and a notice of eligibility for reinstatement.

The Divisional Court dismissed the application, finding no conflict between the provincial and federal legislation, and holding that the doctrines of public estoppel and legitimate expectations cannot override the Registrar's mandatory statutory duty to suspend the licence.