Thomas J. McEwen

The respondents requested dismissal of an application under rule 2.1 on the basis that it was frivolous, vexatious, and an abuse of process.

The court found the application attempted to re-litigate matters previously decided in a struck action and advanced causes of action that were unintelligible or unknown to law.

Applying the facial screening function under rule 2.1, the court held the lengthy notice of application was obviously abusive and did not warrant further use of court resources or a viva voce hearing.

The application was dismissed, and the respondents were held entitled to seek costs before an Assessment Officer.

The applicants sought to remove the respondent as attorney for personal care and to obtain injunctive relief requiring reinstatement of PEG feeding for an incapable parent with end-stage Alzheimer's Disease.

After hearing evidence from the treating palliative care physician and submissions from all parties, the court applied the incapable person's best interests and prior wishes under the governing statutory scheme.

The court concluded that continued PEG feeds provided no benefit, had become burdensome, and that discontinuance was consistent with the authority granted under the power of attorney for personal care.

The temporary injunction was lifted and the respondent was permitted to discontinue PEG feeds in accordance with the medical opinion.

The defendant, a federal standing Crown agent, moved to strike the plaintiffs' statement of claim under Rule 21.01(1)(b) on the basis of prosecutorial immunity and failure to plead sufficient facts for malicious prosecution.

The plaintiffs alleged misfeasance in public office, abuse of process, conspiracy, and malicious prosecution arising from the defendant's involvement in an environmental investigation and subsequent prosecution.

The court dismissed the motion, finding it was not plain and obvious that the claims were barred by prosecutorial immunity, as the jurisprudence on whether other torts can be brought against prosecutors remains unsettled.

The court also found the plaintiffs pleaded sufficient material facts to support the elements of malicious prosecution.

An auditing firm sought a declaration that its former corporate audit client was contractually required to indemnify it for legal fees and professional time incurred responding to a regulatory investigation concerning the client.

The engagement letters contained indemnity provisions and a working papers clause requiring reimbursement for time spent responding to regulatory or legal processes.

The court held that the provisions unambiguously required the client to indemnify the auditor for both legal fees and its own professional time incurred in cooperating with the regulator, absent negligence by the auditor.

While the legal fees were accepted as reasonable on the record, the auditor’s own fees required adjustment based on the underlying dockets, excluding entries lacking descriptions.

The court granted the declaration and ordered payment of the legal fees and adjusted professional fees.

Shareholder plaintiffs commenced an action alleging that directors and officers of a publicly traded corporation engaged in improper transactions and that certain third parties knowingly assisted in those transactions.

The moving defendants sought to strike the statement of claim, arguing that the claim improperly sought recovery for losses suffered by the corporation and therefore required leave to proceed as a derivative action under s. 246 of the Ontario Business Corporations Act.

The court held that the plaintiffs’ claim, which sought disgorgement of funds to the corporation, was fundamentally derivative in nature and could not proceed as an oppression claim in the circumstances of a large publicly traded corporation.

The court distinguished appellate authority permitting overlap between oppression and derivative remedies in closely held corporations.

The statement of claim was struck without prejudice to the plaintiffs applying for leave to bring a derivative action.

The defendant/plaintiff by counterclaim brought a motion seeking declarations regarding her status as a shareholder and director of the plaintiff corporation following her termination without cause and the subsequent exercise of an option to purchase her shares.

The plaintiff brought a cross-motion seeking declarations that she had ceased to hold those positions.

The court interpreted the Unanimous Shareholder Agreement and found that the moving party and her family trust remain shareholders, and she remains a director, until the closing of the share transfer.

The court granted the requested declarations and ordered the plaintiff to provide access to corporate records.

In contentious estate litigation, the applicant brought a broad motion seeking numerous procedural and substantive orders relating to the administration of an estate, production of records, and interim support.

The court found the litigation had become highly acrimonious and expensive, warranting active case management and intervention to regularize the proceedings.

Orders were made requiring the respondents to pass accounts, appointing an estate trustee during litigation, compelling production of medical and solicitor records relevant to testamentary capacity, permitting amendment of the application to determine the deceased’s last will, and directing an organized exchange of productions.

The court also granted the applicant an interim funding order from the estate for legal expenses.

Contempt motions brought by both sides were dismissed.

McMaster University sought judicial review of a labour arbitrator's decision interpreting a collective agreement.

The arbitrator found that the agreement required McMaster to consider employees' work on behalf of the union as part of their 'professional service and professional activity' for the purpose of determining merit pay.

McMaster argued this interpretation was unreasonable as it conferred a financial benefit without clear language, created a conflict of interest, and exposed the university to claims of anti-union conduct.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation was within the range of possible, acceptable outcomes and did not create an absurdity.

The applicant mining company brought an application concerning mining royalty interests subject to contractual rights of first refusal.

After the respondent corporation dissolved and distributed its royalty interests to its principal shareholder, the applicant alleged that the transfer triggered the contractual rights of first refusal contained in two agreements governing mining royalties.

The court held that the dissolution and distribution of assets constituted a “transfer,” “grant,” or other disposition within the meaning of the agreements.

The respondent’s argument that the rights were only triggered by receipt of a bona fide third‑party purchase offer was rejected.

The court declared that the rights of first refusal were breached and granted declaratory and injunctive relief preventing enforcement of the royalty obligations.

An employer sought declarations that a senior executive’s employment agreement requiring six months’ written notice of resignation was valid and enforceable.

The employee resigned and intended to join a competitor before the notice period expired, arguing the contract violated the Employment Standards Act, lacked consideration, functioned as an unlawful non‑compete, and that he had “Good Reason” to resign without notice.

The court rejected these arguments, finding the executive had accepted the promotion and contract, the notice provision did not breach the ESA, and the clause was not equivalent to a non‑competition covenant because the employee remained employed and paid during the notice period.

The employee also failed to establish a material alteration of duties or to comply with contractual procedures for asserting “Good Reason.” The court declared the contract binding and confirmed the six‑month notice period applied.

The plaintiffs, engaged in the hazardous waste disposal business, were investigated by Environment Canada, resulting in the execution of two search warrants and the laying of charges.

The plaintiffs commenced multiple Small Claims Court actions against the Crown defendants and various officials, alleging improper conduct during the investigations and searches.

These actions were transferred to the Superior Court and consolidated.

The plaintiffs brought a motion for leave to amend their statement of claim to divide the action into four separate claims and to add new causes of action, including negligence, Charter breaches, misfeasance in public office, and malicious prosecution, as well as new parties.

The defendants opposed the amendments, arguing they were statute-barred by the Limitations Act.

The court granted the plaintiffs' motion to amend, finding that the original pleadings contained sufficient material facts to support the alternative theories of liability, while granting the defendants leave to raise limitation period defences in respect of certain claims.

The moving party sought to vacate an ex parte Mareva injunction freezing assets, arguing that the injunction had been obtained through material misrepresentations and failures of full and frank disclosure.

The court accepted that inaccuracies had been presented in the original application, including overstated assets, understated income, and failure to disclose proceeds from a home sale.

However, given ongoing concerns about the disappearance of significant funds and unresolved factual disputes, the court declined to set aside the injunction entirely.

Instead, the injunction was varied to permit the release of a portion of frozen funds reflecting assets the moving party credibly established were independently earned.

The court also dismissed the opposing party’s cross‑motion for additional funding and awarded costs to the moving party.

The applicant shareholder brought an application under s. 247 of the Canada Business Corporations Act seeking an order that the respondent corporation comply with and refrain from breaching s. 150 regarding proxy solicitation.

The dispute arose from a corporate press release issued during a proxy contest, which the applicant alleged constituted an unlawful solicitation of proxies prior to delivery of a management proxy circular.

The court considered whether the communication was “calculated to result in the procurement or withholding of a proxy” within the meaning of the Act.

Interpreting solicitation broadly but contextually, the court found the press release primarily responded to criticisms and explained corporate actions rather than encouraging shareholders to submit proxies.

The press release therefore did not constitute a solicitation and no breach of s. 150 occurred.

The respondent sought costs following a proceeding.

The court found the time spent and rates claimed by the respondent's counsel to be reasonable.

However, the court made a downward adjustment to the costs claimed because the court had appointed amicus curiae, which raised real legal issues that the respondent was obliged to address.

Costs were fixed at $6,250 payable by the opposing party to the respondent.

The plaintiff employee brought an action for wrongful dismissal against his employer, alleging constructive dismissal after the employer unilaterally added significant IT and software administration duties to his original role as a field service technician.

The employer argued the changes were a natural extension of his duties and that the employee failed to mitigate by refusing to return to work.

The Superior Court of Justice found that the employer fundamentally altered the employment contract and created a hostile work environment, constituting constructive dismissal.

The plaintiff was awarded $55,000, representing 12 months' notice, but his claim for bad faith damages was dismissed.

The plaintiff sued his former family lawyer and the lawyer’s firm for negligence arising from advice and drafting of a separation agreement that waived spousal support.

The plaintiff argued that the agreement was vulnerable to challenge and that counsel failed to adequately advise him of the risks and should have ceased acting once the agreement was attacked in subsequent litigation.

The court held that the lawyer met the heightened standard of care applicable to a family law specialist, having properly explained the risks and drafted a robust spousal support waiver.

The court also found no breach in continuing the retainer and concluded that causation and damages were not established, including under a lost‑chance analysis.

The action was dismissed.

The applicant sought judicial review of a decision by an adjudicator at the Information and Privacy Commissioner of Ontario.

The applicant had requested information from the Ontario Lottery and Gaming Corporation regarding a $20 million winning lottery ticket he claimed was stolen from him.

The adjudicator upheld the OLGC's redaction of a Draw Report and found that the OLGC had conducted a reasonable search for records in its custody or control.

The Divisional Court dismissed the application, finding that the OLGC was not required to obtain records from third parties like Lotto Québec or the Interprovincial Lottery Corporation, as it did not have control over those records.

The applicant Ministry sought judicial review of a Grievance Settlement Board decision reinstating a Transportation Enforcement Officer who was terminated after pleading guilty to off-duty indecent acts.

The Divisional Court allowed the application and upheld the termination, finding that the Board's decision was unreasonable.

The Board misapprehended medical evidence regarding the employee's long-term risk of reoffending and unreasonably diminished the significance of the Millhaven criteria for off-duty conduct, particularly the negative impact on the employee's credibility as a peace officer required to testify in court.

The applicant employer sought judicial review of a preliminary decision by the Ontario Labour Relations Board finding that the union's certification application fell within provincial jurisdiction.

The respondent union argued the application was premature because the employer had other non-constitutional grounds for opposing certification that had not yet been decided.

The Divisional Court agreed, holding that absent exceptional circumstances, proceedings before administrative tribunals should not be fragmented.

Finding no exceptional circumstances, the court quashed the application as premature.

The defendants appealed an interlocutory order denying the production of certain medical records.

The motion judge had refused production based on the assumption that the individual whose records were sought had cerebral palsy and could not serve as a proper comparator.

On appeal, counsel clarified that there was no conclusive diagnosis of cerebral palsy.

The Divisional Court allowed the appeal and ordered production, noting that the trial judge retains the discretion to exclude evidence if its prejudicial effect outweighs its probative value.