Wendy M. Matheson

The moving parties brought a motion for leave to appeal from the order of Ramsay J. dated June 30, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding parties.

The moving parties brought a motion for leave to appeal an adjournment order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs fixed on a substantial indemnity basis.

The moving parties brought a motion for leave to appeal from a benefit permit order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $7,418 to the responding parties.

The moving parties sought leave to appeal from a power of attorney order.

The Divisional Court dismissed the motion for leave to appeal.

The moving parties were ordered to pay costs of $8,640 to the responding parties.

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

The defendants brought a motion for leave to appeal a costs order and an interest award.

The Divisional Court dismissed the motion for leave to appeal the costs order, awarding costs of $5,000 to the plaintiff.

The court noted that leave is not required to appeal the interest award, which may be addressed at the hearing of the appeal from the trial judgment.

The moving party brought a motion for leave to appeal an order dated April 19, 2021.

The Divisional Court dismissed the motion for leave to appeal without requiring responding materials.

No costs were ordered.

The moving parties sought leave to appeal three interlocutory orders made by the case management judge.

The Divisional Court dismissed the motion for leave to appeal the order for production of documents, awarding costs to the responding parties.

The court granted leave to appeal the order requiring an assessment of capacity to instruct counsel and stayed that order pending the appeal.

The motion for leave to appeal the suspension of counsel's appointment pending the assessment was dismissed.

The moving parties brought a motion for leave to appeal an order dated March 17, 2020, and to stay an order dated February 1, 2021.

The Divisional Court dismissed the motion in a brief endorsement.

Costs were awarded to the responding party in the fixed amount of $2,500.

The moving party sought leave to appeal a lower court decision.

The Divisional Court granted leave to appeal in respect to three of the four issues raised in the notice of motion.

Costs of the motion for leave to appeal were fixed at $6,750, payable in the discretion of the appeal panel.

The moving party sought leave to appeal from an unreported decision of the lower court.

The Divisional Court granted the motion for leave to appeal without costs.

The court ordered that the appeal be expedited and directed the parties to attend a case management teleconference to set a schedule and return date.

The appellant appealed a decision dismissing his motion to change a spousal support order.

He argued that the respondent was no longer entitled to compensatory support, that more income should be imputed to her, that his own imputed income of $100,000 was too high, and that an increase in child support constituted a material change in circumstances.

The Divisional Court dismissed the appeal, finding no material error or serious misapprehension of evidence by the motion judge.

The court upheld the findings that the respondent made reasonable efforts to become self-sufficient, the appellant failed to prove a material change in his income, and the increased child support did not reduce the respondent's need for support.

The Landlord and Tenant Board requested an order dismissing the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure.

The plaintiff sought $30 million in damages against the Board, alleging misconduct, bias, and procedural unfairness during her eviction proceedings.

The court found the action was an attempt to relitigate issues already decided by the Board and the Divisional Court.

The action was dismissed as a collateral attack and an abuse of process.

The defendant requested an order dismissing the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, or an abuse of process.

The plaintiff's claim primarily sought to relitigate a landlord-tenant dispute that had already been decided by the Landlord and Tenant Board and the Divisional Court.

The court dismissed the claims related to the tenancy dispute against the landlords, a paralegal, and a lawyer as an abuse of process.

However, the court allowed the claims alleging police assault against the Toronto Police Services Board and defamation against two tenants to proceed, as they were not clearly frivolous on the face of the pleadings.

The court reviewed the plaintiffs' handwritten and largely illegible statement of claim under Rule 2.1.01 for abuse of process.

The plaintiff Dorothy Buckhalter was identified as a person under legal disability, and her litigation guardian, Ian R. A. MacMillan, failed to meet the mandatory requirements of Rules 7.02 and 15.01, including filing an affidavit and being represented by a lawyer.

The court found this failure to be an abuse of process.

The action was stayed for both plaintiffs, with the possibility of lifting the stay once the litigation guardian issue is properly addressed.

The defendants moved for summary judgment to dismiss a nuisance claim arising from construction noise outside permitted hours, relying on an exclusion clause in the agreement of purchase and sale (APS).

The court interpreted the APS and found that the exclusion clause did not apply to construction noise from an adjacent Phase II development occurring outside permitted hours.

The court also dismissed the separate motion to dismiss the claim against Tridel, finding insufficient evidence to establish Tridel's limited involvement and noting the elastic nature of the tort of nuisance.

The defendants' motion for summary judgment was dismissed.

The defendants brought a motion under Rule 2.1.01 to dismiss the action due to an illegible handwritten statement of claim.

The court, instead of immediate dismissal, ordered the plaintiffs to provide a legible transcription of their statement of claim and written submissions.

The action was stayed pending the outcome of the Rule 2.1 hearing, and the Registrar was directed to give notice to the plaintiffs regarding the potential dismissal.

The College of Veterinarians appealed a decision of its Discipline Committee excluding evidence against a veterinarian accused of possessing child pornography.

The evidence was obtained by police during a criminal investigation that was later withdrawn due to a conceded s. 8 Charter breach.

The Discipline Committee excluded the evidence under s. 24(2) of the Charter, relying on a case (Viscomi) to find the police search warrant application was materially misleading.

The Divisional Court held that the Committee's reliance on Viscomi was wrong in law, rendering its s. 24(2) Grant analysis unreasonable.

The appeal was allowed and the matter remitted for a new hearing.

The defendant, Integral Development LLC, moved to set aside a default judgment of $8.05 million arising from a failed commercial real estate transaction.

The defendant argued it had a plausible excuse for failing to defend the action and an arguable defence on the merits, specifically that a condition in the agreement of purchase and sale was never met.

The court applied the five-factor test for setting aside a default judgment and found that the defendant's excuse was plausible and its defence had an air of reality.

The court exercised its discretion to set aside the default judgment, allowing the defendant to defend the claim on its merits.

The applicant, a police officer, sought judicial review of a decision by the Ontario Civilian Police Commission confirming his conviction for discreditable conduct and a nine-month demotion.

The applicant argued his guilty plea was invalid due to a panic attack and that his hearing counsel provided ineffective assistance by failing to file medical evidence at the penalty hearing.

The Divisional Court dismissed the application, finding the Commission reasonably concluded the guilty plea was voluntary and that counsel's tactical decision not to file the medical report in light of a joint submission on penalty did not constitute ineffective assistance.

The court also refused to admit supplemental affidavit evidence on judicial review.