T. R. Lofchik

Residual beneficiaries brought a motion for directions in a contested passing of accounts relating to a large estate.

They alleged that estate trustees had taken excessive executor’s compensation and sought review and possible repayment.

A former trustee sought to add an accounting firm as a party on the basis that the firm had received a substantial portion of the executor compensation through a partnership arrangement and might be vicariously liable under the Partnerships Act if the compensation was excessive.

The court held that there was a triable issue regarding whether the partner acted within the scope of partnership business or with the firm’s authorization, and that the firm’s presence was necessary to adjudicate the issues effectively.

The firm was therefore added as a party and a procedural timetable was established for discovery and trial of the passing of accounts.

In an extradition proceeding, the person sought applied to introduce additional evidence challenging the reliability of evidence contained in the requesting state’s record of the case.

The court considered the limited role of an extradition judge under the Extradition Act and the Supreme Court’s guidance in Ferras requiring only a limited qualitative assessment of evidence.

The court held that most of the proposed evidence merely challenged the credibility of cooperating co‑conspirators and therefore went to weight rather than admissibility.

Such evidence could not render the requesting state’s evidence manifestly unreliable for the purposes of the committal test under s. 29(1).

Only evidence relating to contradictory statements about citizenship, relevant to the obstruction of justice allegation, was permitted to be introduced.

The Crown applied to have the offender declared a dangerous offender under s. 753 of the Criminal Code following convictions for aggravated assault, assault causing bodily harm, assault with a weapon, threatening death, obstruction of justice, weapons offences, and multiple breaches of probation.

The court reviewed the offender’s history of violent assaults and expert psychiatric and psychological evidence assessing the risk of violent recidivism.

Although the offender demonstrated anti‑social personality traits and a moderate risk of violent reoffending, the court found the offences did not establish the level of intractable pattern of behaviour required for a dangerous offender designation.

Applying conventional sentencing principles including denunciation, deterrence, rehabilitation, and the totality principle, the court imposed a determinate penitentiary sentence.

Credit for pre‑sentence custody was reduced from the usual 2:1 given the offender’s risk profile and incarceration history.

A defendant brought a motion for summary judgment dismissing a personal injury action arising from a roofer’s fall from a neighbouring property onto a metal fence.

The plaintiff alleged that the fence constituted a dangerous trap and that the occupier breached duties under the Occupiers’ Liability Act and a municipal fence by-law.

The court applied the summary judgment framework and concluded there was no genuine issue requiring a trial.

It held that the fence was visible, not a hidden danger, and that the risk of a person falling from a neighbour’s roof onto the fence was not reasonably foreseeable.

Summary judgment was granted dismissing the claim against the moving defendant.

The complainant, who had bipolar disorder, was hired as a software program tester.

Shortly after starting, he disclosed his condition to his supervisor and began exhibiting pre-manic symptoms.

The employer terminated him ten days into his employment, claiming he misrepresented his ability to perform the job.

The Human Rights Tribunal found the employer discriminated against the complainant and failed its procedural and substantive duties to accommodate his disability, awarding damages and public interest remedies.

The Divisional Court upheld the Tribunal's findings on discrimination, accommodation, and damages, but modified some of the public interest remedies.

The appellants appealed an Ontario Municipal Board decision that struck portions of their statement of claim for injurious affection and refused to order the production of certain settlement agreements and reports.

The Divisional Court held that the Board erred in law by requiring an application under the Municipal Freedom of Information and Protection of Privacy Act as a condition precedent for production, as the Act does not limit information otherwise available in litigation.

The court upheld the striking of the pleadings due to fundamental flaws but granted the appellants leave to amend their statement of claim to properly plead injurious affection.

The defendant insurer appealed an order requiring it to produce its entire claims file from a prior, settled coverage action in a subsequent bad faith action brought by the plaintiff.

The motions judge had found that the defendant impliedly waived privilege by pleading good faith.

The Divisional Court allowed the appeal, applying the Supreme Court of Canada's decision in Blank v. Canada.

The Court held that litigation privilege continues in closely related subsequent litigation and that pleading good faith does not constitute a waiver.

The blanket production order was set aside, and the defendant was ordered to deliver an Affidavit of Documents individually listing the documents over which privilege is claimed.

The applicant sought judicial review of an arbitration award and a decision of the Ontario Police Arbitration Commission.

The arbitrator had dismissed a grievance regarding the inclusion of cadet service in the calculation of 'continuous active service' for a seniority premium, finding he lacked jurisdiction to define the term as the parties had not yet done so.

The Commission subsequently refused to appoint a conciliation officer, finding no notice to bargain had been given for the current collective agreement.

The Divisional Court applied the pragmatic and functional approach, determining the standard of review for the arbitration award was patent unreasonableness and for the Commission's decision was reasonableness.

The Court found neither decision met the threshold for intervention and dismissed both applications for judicial review.

The applicant municipality sought judicial review of a labour arbitration award that granted part-time nurses overtime pay for regularly scheduled Saturday shifts.

The arbitrator had found that Saturday work fell outside the normal work week defined in the collective agreement.

The Divisional Court applied the patent unreasonableness standard of review and concluded that the arbitrator's interpretation was rationally supported by the language of the agreement.

The application for judicial review was dismissed.

The applicant housing cooperative brought a motion to lift the stay of enforcement of a Writ of Possession pending the respondent's appeal of the eviction order.

The Divisional Court dismissed the motion, finding no compelling evidence of a risk of serious physical harm to the cooperative or its residents that would constitute irreparable harm.

The court also found that the balance of convenience and prejudice favoured the respondent, as lifting the stay would require her to vacate her home of 25 years and potentially deprive her of statutory protections under the Co-operative Corporations Act if her appeal succeeded.

The defendant, the Attorney General of Canada, sought leave to appeal an order dismissing its motion to strike the plaintiff's statement of claim.

The plaintiff claimed damages for his internment during the Second World War due to his Italian origin.

The court found good reason to doubt the correctness of the motion judge's decision, noting that prior to 1953, there was no common law cause of action in tort against the Crown, and the Crown Liability Act is not retrospective.

Leave to appeal was granted as the issues raised had implications beyond the plaintiff's interest.

The applicant Children's Aid Society sought leave to appeal a costs order requiring it to pay the respondent stepfather's costs on a full recovery basis in a child protection and status review proceeding.

The motion judge granted leave to appeal, finding reason to believe the costs judge misapprehended facts regarding whether the Society withheld expert reports from the respondent, and erred in principle by treating a status review application as an extension of a protection application for costs purposes.

The applicant sought judicial review of an order made by a Superior Court judge sitting in Family Court in a child protection proceeding.

The applicant argued that the judge should be deemed a judge of the Ontario Court of Justice under the Courts of Justice Act, making the decision subject to judicial review.

The Divisional Court dismissed the application, holding that the judge was sitting as a Superior Court judge and that certiorari does not lie against a decision of a Superior Court judge.