Timothy J. Hill

Following dismissal of an appeal from an arbitrator’s decision, the successful party sought full indemnity costs on the basis that the appeal was hopeless and should never have been brought.

The court reviewed the governing principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, noting that full indemnity costs require reprehensible, scandalous, or outrageous conduct.

The court found that although the appellant was unsuccessful, the appeal was not frivolous or vexatious and counsel’s conduct was professional.

The request for full indemnity costs was therefore rejected.

Partial indemnity costs of $10,492.46 were awarded as fair and reasonable in the circumstances.

The appellant appealed an arbitrator’s ruling under ss. 45(2) and (3) of the Arbitration Act, 1991 after the arbitrator dismissed a motion seeking to strike or limit the respondent’s claims based on an exclusion clause in a distribution agreement.

The court held that the arbitrator’s decision was interlocutory rather than a final award because it did not dispose of the substantive dispute and instead required factual findings at a full hearing.

Under the Arbitration Act, interlocutory rulings in arbitration are not subject to appeal.

The court further found no error in the arbitrator’s conclusion that interpretation of the contractual limitation clause required consideration of the factual matrix.

The appeal and challenge to the arbitrator’s costs award were dismissed.

Municipal taxpayers brought an action challenging a waterfront redevelopment project involving a municipality and a private developer.

The plaintiffs sought declarations that agreements transferring municipal land in exchange for community benefits were ultra vires, constituted illegal bonusing under s.106 of the Municipal Act, 2001, lacked consideration, and created an unlawful partnership.

On cross-motions for summary judgment, the court held the contractual arrangement fell within the municipality’s broad powers under ss. 8, 9, and 11 of the Municipal Act, 2001 and s.37 of the Planning Act.

Viewing the transaction as a whole, the court found the municipality received substantial community benefits and economic advantages, meaning the arrangement did not confer an obvious or undue advantage on the developer.

The plaintiffs’ claims were dismissed and summary judgment granted to the defendants.

The appellant Township appealed a decision setting aside a master's order that required the respondent to deliver a further and better affidavit of documents.

The master's order was based on admissions made by the respondent in response to a request to admit regarding the existence of documents proving damages.

The Divisional Court dismissed the appeal, holding that using a request to admit to force a party to state whether it has documents evidencing damages is improper and a nullity.

Consequently, the respondent's admissions were also a nullity, and the appeal judge did not err in setting aside the master's order.

The appellants appealed an order confirming a Master's report on the taking of accounts in a partnership dispute.

They argued the Master erred in failing to give them credit for unequal capital contributions and in allowing the respondent's claim for development fees.

The Court of Appeal dismissed the appeal, finding that the Master's conclusions were supported by the evidence and that he acted within his jurisdiction under Rule 55.04(1)(e) to settle accounts and make just allowances.

The appellant franchisee received a disclosure document from the respondent franchisor more than 14 days after paying a franchise fee, but six months before executing the franchise agreement.

Nearly two years later, the franchisee sought to rescind the agreement under the Arthur Wishart Act.

The Court of Appeal upheld the motion judge's finding that the franchisee had no right of rescission.

Section 6(2) applies only when no disclosure document is ever provided, and section 6(1) requires rescission within 60 days of receiving a late or deficient document, which the franchisee failed to do.

The City of Oshawa appealed a decision of the Ontario Municipal Board (OMB) that repealed an interim control by-law prohibiting the establishment of methadone clinics in the Central Business District.

The by-law was passed following ratepayer resistance to the respondent's proposed clinic.

The OMB found no legitimate planning rationale for the by-law.

The Divisional Court dismissed the appeal, holding that the OMB had jurisdiction to determine the planning rationale and that its decision, reviewed on a standard of reasonableness, was supported by the evidence and established policies.

The moving party sought to set aside an order of a single judge refusing leave to appeal a substantial costs award made by the Ontario Municipal Board.

The moving party argued that the costs award penalized them for exercising their right to a hearing de novo.

The Divisional Court dismissed the motion, finding that the single judge did not decline jurisdiction or apply a wrong principle in refusing leave to appeal, but rather considered the argument on its merits and rejected it.

The purchaser of a new home claimed compensation from the Ontario New Home Warranty Program, alleging she should have received legal title to a side yard rather than an easement.

The Program denied the claim, but the Commercial Registration Appeal Tribunal ordered compensation under s. 14(1)(a) of the Ontario New Home Warranties Plan Act.

The Program appealed.

The Divisional Court allowed the appeal, holding that s. 14(1)(a) protects purchasers from financial loss when a vendor fails to complete a contract, and does not apply to alleged title deficiencies after a transaction has closed.