W. Danial Newton

The appellant purchased commercial property subject to an easement, with a vendor take-back mortgage that would be reduced by $442,000 if the vendor failed to register a valid release of the easement within one year.

The vendor obtained a court order discharging the easement and registered it two days before the deadline, but the order was subsequently appealed.

The Divisional Court allowed the purchaser's appeal, holding that while a court order can satisfy the requirement for a release, an order subject to subsisting appeal rights does not provide the bargained-for certainty of good title.

The purchaser was therefore entitled to the $442,000 reduction in the mortgage principal.

The union applied for judicial review of an arbitrator's supplementary decision regarding the termination of employee benefits during the discipline process.

The arbitrator found that the employer's obligation to continue providing benefits to employees grieving their dismissal up to step three of the grievance procedure only lasted until the expiry of the collective agreement and the statutory freeze.

The Divisional Court applied the reasonableness standard of review and found that the arbitrator's decision was based on an internally coherent and rational chain of analysis.

The application for judicial review was dismissed.

The appellant veterinarian appealed a finding of professional misconduct and a penalty decision by the College's Discipline Committee, which included a three-month suspension and a $135,000 costs award.

The misconduct related to the misdiagnosis and improper treatment of a dog's fractured paw.

On appeal, the appellant raised several procedural and constitutional arguments, including allegations of bias, unconstitutional by-laws, and failure to provide reasons by the Complaints Committee.

The Divisional Court dismissed the appeal, finding no palpable and overriding error of fact or error of law, and upheld the costs award as reasonable given the appellant's conduct during the proceedings.

The accused, a 47-year-old Indigenous man with a lengthy criminal record, pleaded guilty to manslaughter after striking the victim in an unprovoked attack.

The court considered Gladue factors but prioritized denunciation and deterrence given the accused's history of violence and non-compliance with court orders.

The accused was sentenced to 8 years' imprisonment, reduced by enhanced credit for pre-sentence custody and harsh pandemic conditions, resulting in a net sentence of 1297 days.

The appellant appealed a temporary order dealing with parenting time and the sale of the matrimonial home.

The appellant argued the motions judge erred by denying an adjournment, failing to consider the best interests of the children, and ignoring child support arrears.

The Divisional Court dismissed the appeal, finding no error in the motions judge's exercise of discretion given the appellant's history of delay.

The court also found the motions judge properly considered the children's best interests and the respondent's sobriety, and appropriately ordered the sale of the home due to the appellant's interference.

The applicant sought to set aside an arbitral award or, alternatively, leave to appeal the award.

The arbitrator had granted summary judgment in favour of the respondent, finding the applicant breached a software services agreement.

The applicant argued the arbitrator lacked jurisdiction to proceed by summary judgment without consent, decided issues beyond the scope of the motion, and relied on independent legal research.

The court dismissed the application, finding the jurisdictional challenge was out of time and, in any event, the arbitrator had the authority to determine the procedure, including proceeding by summary judgment.

The court also found the arbitrator did not exceed the scope of the motion or improperly rely on independent research.

Leave to appeal was denied as the interpretation of the limitation of liability clause was a question of mixed fact and law.

The defendants appealed a motion judge's decision dismissing their motion to remove the plaintiff's counsel of record.

The plaintiff sued their former lawyers (the defendants) for professional negligence, alleging they recommended an improvident settlement of a long-term disability claim.

The defendants argued the plaintiff's current counsel was in a conflict of interest or would be a necessary witness regarding a subsequent tort settlement.

The Divisional Court dismissed the appeal, agreeing with the motion judge that the motion was premature because discoveries had not yet occurred and it was not established that current counsel would likely be a necessary witness.

The accused pleaded guilty to manslaughter after striking the victim once on the neck, causing a fatal brain hemorrhage.

A Gardiner hearing was held to determine disputed facts for sentencing.

The court found that the accused meant to cause serious bodily harm but did not have the requisite intent for murder.

The court rejected claims of provocation and found insufficient evidence that intoxication played a mitigating role, concluding the unprovoked attack occurred in very aggravating circumstances.

The defendants brought a motion for a declaration that a binding settlement was reached between the parties by Minutes of Settlement dated April 2, 2019.

The plaintiff opposed the motion, arguing the settlement was an unenforceable agreement to agree and that the defendants repudiated the agreement through delay.

The court found that essential terms, such as whether the plaintiff would incur guarantee obligations on becoming a 15% shareholder, were not agreed upon at mediation.

The court concluded the Minutes of Settlement constituted an unenforceable agreement to agree and dismissed the motion.

The mother sought a stay of an interim access order that granted the father unsupervised access to their four-year-old child pending her appeal of that order.

The father had not seen the child for over a year and had a history of mental health issues, though no agency had raised concerns about his parenting ability.

Applying the three-part test for a stay, the court found that the balance of convenience favoured a brief period of supervised access to assist the child's reintegration with the father.

The motion to stay was granted in part, varying the lower court's order to require three supervised visits before the unsupervised access schedule commenced.

The appellant appealed a decision of the Licence Appeal Tribunal regarding statutory accident benefits.

At the hearing, the appellant advised the court she was not actually seeking to appeal the Tribunal's decision, but rather sought to add unresolved claims to an existing Superior Court action.

The Divisional Court dismissed the appeal, noting that the appellant had not appealed the prior Superior Court decision that barred her from adding those claims, and the time to do so had expired.

The tenant appealed a Landlord and Tenant Board decision dismissing her claim for reimbursement of an allegedly illegal rent increase.

The tenant had agreed to pay an additional $200 per month and signed a written lease to deter the landlord from selling the property.

The Divisional Court found the LTB erred in law by relying on an express agreement to validate the increase, contrary to the recent Court of Appeal decision in Honsberger.

The appeal was allowed and the matter remitted to the LTB to determine whether the parties and premises changed sufficiently under the written lease to constitute a new tenancy agreement.

The accused, an Indigenous man with significant health issues including kidney failure, pleaded guilty to defrauding an Aboriginal Health Access Centre of $59,901.70 while serving as its Treasurer.

The court considered Gladue factors, the accused's health, and the devastating impact of the fraud on the organization.

A 12-month conditional sentence was imposed, followed by two years of probation, along with orders for full restitution and a lifetime prohibition from holding positions of financial authority.

The appellants appealed a Small Claims Court judgment awarding the respondent damages for negligent misrepresentation regarding a failing septic system in a real estate transaction.

The respondent cross-appealed the trial judge's decision to apply a 50% discount for betterment.

The Divisional Court dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the trial judge's admission of expert evidence or assessment of betterment.

The estate trustee brought a motion to approve the passing of accounts for an estate.

The responding parties challenged the legal fees claimed by the trustee's counsel for estate administration, the trustee's claim for compensation, and sought their own legal fees.

The court found the estate was not complex and reduced the trustee's legal fees significantly, denying the claim for legal assistant time and reducing the lawyer's time.

The court also denied the trustee's claim for compensation, finding the work was performed by the law firm.

The responding parties' legal fees were approved to be paid from the estate, and they were awarded costs of the motion payable by the trustee.

The plaintiff's motion for judgment based on acceptance of an offer was previously dismissed.

Both parties sought costs.

The court found that although the defendants were successful on the motion, they were not entitled to costs because the motion was necessitated by their error in failing to withdraw the offer.

In a rare circumstance, the court awarded costs of $4,000 to the unsuccessful plaintiff.

The defendants brought a motion for leave to serve a responding expert report regarding future care costs after the court-ordered deadline had passed.

The plaintiffs opposed the motion, arguing prejudice and undue delay.

The court granted the motion, finding that the plaintiffs failed to demonstrate prejudice, as the trial had already been delayed due to the COVID-19 pandemic.

However, the court ordered the defendants to pay costs of $2,000 to the plaintiffs due to their cavalier attitude toward court orders.

The applicant, Wally Williams, sought to exclude drug evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

Following a car accident in a remote, cold location, police offered Williams and his companions a ride, conditional on a "safety" pat-down search.

During Williams' search, a pill bottle was discovered, leading to his arrest for drug possession.

A subsequent search of his backpack revealed additional illegal drugs and a "debt book" resulting in charges for possession for the purpose of trafficking.

The court found that the initial "safety" search was not reasonably necessary as there was no imminent threat, and any consent given was limited to a search for weapons, not contraband.

Applying the Grant factors, the court concluded that admitting the evidence, obtained through serious Charter breaches, would bring the administration of justice into disrepute.

The application was allowed, and all seized drug evidence was excluded.

The plaintiff commenced an action for constructive dismissal and other claims.

The defendants made a $25,000 settlement offer in a 'without prejudice' letter in 2016.

Over the next three years, the scope of the plaintiff's claims was significantly reduced through other proceedings.

In 2020, the plaintiff attempted to accept the 2016 offer.

The defendants refused, arguing the offer was not a Rule 49 offer, the acceptance was a counteroffer, and circumstances had changed.

The court found the offer was a valid Rule 49 offer and the acceptance was valid.

However, the court exercised its rare discretion to refuse to enforce the settlement, concluding it would be unjust to allow the plaintiff to profit from the defendants' error in failing to withdraw the offer after circumstances had significantly changed.

The court rendered a decision on costs following the dismissal of the plaintiff's claim as disclosing no cause of action and being a vexatious proceeding.

The defendants sought substantial indemnity costs, citing the plaintiff's history of circumventing orders, ignoring prior cost orders, and raising irrelevant issues and unsubstantiated allegations.

The plaintiff did not file responding submissions.

The court found substantial indemnity costs appropriate given the vexatious nature of the proceedings and awarded the defendants $24,963.03 inclusive of HST and disbursements.