Warren A. Mouck

The appellant appealed and sought judicial review of a Condominium Authority Tribunal (CAT) decision ordering the removal of a dog and finding violations of parking rules.

The appellant argued the CAT misapprehended evidence regarding a service dog exemption and raised new arguments including equitable estoppel and bad faith.

The Divisional Court dismissed the appeal and application, finding the CAT's conclusions were reasonable and supported by evidence, and declined to entertain arguments not raised before the tribunal.

The applicant, a tenured university professor, sought judicial review of a decision by the university's Board of Governors to remove him from his position for adequate cause.

The removal followed findings that he engaged in a sexual relationship with a vulnerable student, hired another student with whom he had a sexual relationship without disclosing the conflict of interest, and used a dating website to flirt with an undergraduate student.

The Divisional Court dismissed the application, finding that the hearing was procedurally fair and the decision to remove the applicant was reasonable, intelligible, and justified given the serious breach of trust and abuse of power.

Following a trial regarding a construction contract dispute where the plaintiff was substantially successful, the parties could not agree on costs.

The plaintiff sought costs of $63,898.45, relying on a Rule 49 offer to settle.

The defendants argued the plaintiff should be denied costs under Rule 76.13(3) because the action should have been pursued under the simplified procedure.

The court found it was reasonable for the plaintiff to have proceeded under the ordinary procedure given the initial construction lien claim and the need for viva voce evidence to resolve credibility issues.

The court awarded the plaintiff costs of $40,000 inclusive.

The plaintiff, a former General Manager, brought a summary judgment motion against his former employer for damages related to a notional Long-Term Incentive (LTI) award, moral/exemplary damages for bad faith conduct during termination, and moving expenses.

The court dismissed the claims for immediate vesting of the LTI award and moving expenses, and awarded moral damages for the employer's untruthful and misleading conduct prior to termination.

The issue of entitlement and quantum of the notional LTI award was deemed to require a mini-trial due to insufficient evidence.

The applicant union sought judicial review of a labour arbitration award concerning a grievance for an employer's failure to investigate a workplace sexual assault of a 17-year-old employee.

The arbitrator upheld the grievance but awarded only $1,000 in nominal damages, finding the employee suffered no mental or emotional damages and blaming the lack of a formal complaint.

The Divisional Court found the award unreasonable, holding that the arbitrator failed to address the employer's statutory breaches under the Human Rights Code and the Occupational Health and Safety Act, relied on irrelevant considerations, and used stereotypical reasoning regarding the victim's reaction.

The court quashed the decision and directed a new hearing before a different arbitrator.

The defendant insurer moved to dismiss the plaintiff's action for long-term disability benefits, arguing the court lacked jurisdiction because the plaintiff's employment was governed by a collective agreement requiring arbitration.

The plaintiff, a registered nurse, was working in a temporary non-union management position on the date she became disabled and stopped working.

The court found that because the plaintiff was not in the bargaining unit on the date of disability, the collective agreement did not apply to her claim.

The motion to dismiss was dismissed, affirming the Superior Court's jurisdiction.

A case management teleconference was held to schedule a motion to strike an affidavit filed by the responding party in an application for judicial review.

The underlying application concerns an arbitrator's decision regarding a grievance filed after a union member was sexually assaulted at work.

The court scheduled the motion to proceed before a single judge of the Divisional Court by ZOOM videoconference in October 2020 and set out the timetable for serving and filing materials.

The applicant school board sought judicial review of an arbitration award that upheld a union grievance regarding a teacher laid off out of seniority order.

The board argued it retained a junior teacher because she possessed specific skills (ASL and PECS) necessary for a special education course, fulfilling its statutory duty to provide the 'best possible program.' The Divisional Court dismissed the application, finding the arbitrator's conclusion reasonable that the collective agreement's seniority provisions and the statutory requirements were complementary, and that the junior teacher did not possess recognized qualifications superior to the senior teachers.

The respondents, the declarant and project manager of a condominium, brought a motion to add the general contractor, Man-Shield, as a party to an application brought by the condominium corporation seeking as-built drawings under the Condominium Act, 1998.

Alternatively, the respondents sought to consolidate the application with a related construction deficiency action.

The court dismissed the motion to add the general contractor, finding no cause of action against it under the Act, which imposes obligations solely on the declarant.

The court also dismissed the motion to consolidate, finding the issues distinct and noting that consolidation would unnecessarily complicate the proceedings and prejudice other parties.

The defendant brought a motion to set aside a default judgment in a wrongful dismissal action.

The defendant argued that its failure to defend the action was solely due to the negligence of its former lawyer, who failed to act despite instructions.

The court applied the test for setting aside a default judgment and found that the defendant moved promptly upon learning of the default, had a plausible explanation for the default, and raised an arguable defence on the merits regarding cause for termination and damages.

The court granted the motion to set aside the default judgment but ordered the defendant to pay the plaintiff's substantial indemnity costs incurred due to the default.

The appellants sought a declaration that a 99-year lease registered against their property in 1972 was void, alleging it violated the Planning Act's subdivision prohibition.

The lease was entered into in 1968 between the respondent and the appellants' predecessor in title.

The application judge found that an oral lease agreement existed with part performance before the relevant statutory exemption was removed on May 2, 1968, thereby validating the lease.

The appellants appealed on three grounds: procedural fairness, lack of evidentiary support for part performance, and misapplication of the part performance test.

The Court of Appeal allowed the appeal, finding that the application judge denied procedural fairness by raising the oral lease and part performance issues only at the conclusion of argument and then refusing to permit the appellants to file further evidence to address these issues.

The plaintiff, a 65-year-old general manager, was terminated without cause or notice after five years of employment when the defendant corporation was shut down.

The defendant abandoned its defence at trial.

The court awarded nine months' notice, equivalent to $48,749.94.

The court declined to deduct the plaintiff's post-termination earnings from inferior positions, finding he was forced to accept them to mitigate his damages.

The court also awarded $7,500 in exemplary damages due to the defendant's bad faith conduct in blackening the plaintiff's character in the community.

The applicants purchased property subject to a 99-year lease held by the respondent flying club.

Seven years later, the applicants sought to declare the lease void for contravening the Planning Act, arguing it was executed after an amendment that repealed an exemption for long-term leases.

The respondent argued the lease was saved by the doctrine of part performance prior to the amendment.

The court applied the four-part test for part performance and found that the respondent's actions, including surveying the property, making improvements, and paying rent, constituted part performance prior to the amendment.

The application was dismissed.

The appellant brought four related actions against various respondents arising from dealings that occurred primarily in the United States between 2001 and 2016.

The respondents moved to dismiss or stay the actions on the ground that Ontario courts lacked jurisdiction due to the absence of a real and substantial connection to the province.

The motion judges granted the motions and dismissed all actions.

On appeal, the Court of Appeal considered whether Ontario jurisdiction existed based on: (1) consulting contracts allegedly entered into at Toronto airport; (2) products being advertised, marketed, and distributed in Ontario; and (3) respondents carrying on business in Ontario.

The Court of Appeal upheld the dismissals, finding no real and substantial connection to Ontario and affirming that mere advertising or distribution through third-party retailers does not constitute carrying on business in the jurisdiction.

The plaintiff brought a motion to compel the defendant to deliver an affidavit of documents, but abandoned it after the defendant delivered the materials.

The defendant sought costs of the abandoned motion under Rule 37.09(3).

The court found the plaintiff acted unreasonably by setting a deadline and bringing the motion while knowing defendant's counsel was on vacation.

However, the defendant failed to provide a Bill of Costs and unnecessarily ran up the plaintiff's costs after the abandonment.

The court awarded the defendant nominal costs of $500.