Wendy M. Matheson

The court issued a costs endorsement following successful motions by the Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and the Independent Electricity System Operator (IESO) to strike two constitutional challenge applications.

The applications, brought by National Steel Car Limited, challenged aspects of Ontario's Global Adjustment electricity regime.

The court awarded partial indemnity costs to the Attorney General and Her Majesty in the amount of $50,000, and to the IESO in the amount of $75,000.

The decision considered the general principles of costs under Rule 57.01, the principle of indemnity, and the reasonable expectations of the parties.

It addressed the applicant's argument of being a public interest litigant and confirmed that a party fully participating in and supporting a successful motion, even without formally bringing it, can be awarded costs, subject to adjustment.

The defendant, Toronto Police Services Board, moved for summary judgment to dismiss an action brought by the plaintiffs, Riaz Bagha and Sajidha Bagha.

The plaintiffs' action alleged negligent investigation, false arrest and imprisonment, malicious prosecution, and breach of the Canadian Charter of Rights and Freedoms, stemming from extortion charges laid against them that were later withdrawn.

The defendant argued that peace bonds entered into by the plaintiffs were dispositive of the claims and that the investigating officer had reasonable and probable grounds.

The court found that peace bonds do not automatically bar malicious prosecution or negligent investigation claims, requiring a "Mammoliti analysis" into the underlying reasons.

Significant factual disputes existed regarding the investigation's thoroughness, the accuracy of police synopses, and the circumstances surrounding the peace bonds.

The court concluded that there were genuine issues requiring a trial and that the summary judgment process was not suitable for a fair and just determination on the merits, dismissing the defendant's motion.

Aroland First Nation and Ginoogaming First Nation sought partial summary judgment for a declaration that the Crown's duty to consult under s. 35 of the Constitution Act, 1982, is triggered by ongoing invasive testing (integrity digs and hydrostatic testing) on established natural gas pipelines traversing their traditional territories.

The defendants opposed, arguing no duty to consult or that the matter was unsuitable for partial summary judgment.

The court dismissed the motion, concluding that the issue could not be fairly and justly decided through partial summary judgment due to the need for a careful, incremental approach to Aboriginal law, disputed facts regarding adverse impact, significant overlap with broader issues of duty scope and breach, and the novelty of the case.

The defendant employer moved for summary judgment to dismiss a negligent misrepresentation claim regarding group life insurance benefits.

The plaintiff alleged the employer failed to adequately communicate a change in the definition of 'accident' in the policy, which resulted in the denial of accidental death benefits following the employee's fatal fall.

The court granted the motion and dismissed the action, finding no evidence of inaccurate information, negligence, reliance, or damages to support the misrepresentation claim.

The appellant condominium corporation appealed a Small Claims Court judgment awarding the respondent lawyer $19,215.40 in unpaid legal fees.

The sole issue on appeal was whether the Deputy Judge erred in refusing to grant an adjournment when the appellant's representative arrived late to the trial.

The Divisional Court dismissed the appeal, finding that the Deputy Judge had wide discretion and made no reviewable error, given the history of prior adjournments and the appellant's failure to properly request an adjournment at the outset of the trial.

The respondents brought a motion to strike out two applications challenging the constitutionality of the Global Adjustment under the Electricity Act, 1998.

The responding party argued that the Global Adjustment was an unconstitutional tax that violated s. 53 of the Constitution Act, 1867.

The court applied the Lawson and Westbank tests, concluding that the Global Adjustment is a regulatory charge tied to a complex regulatory scheme, not a tax.

The court found it plain and obvious that the applications could not succeed and granted the motion to strike.

Following a trial judgment where the plaintiff was awarded $76,275 in a breach of contract action originally claiming $250,000, the court determined the quantum of costs.

The plaintiff sought approximately $78,000, while the defendant argued for a 50% reduction based on the judgment falling within the simplified rules limit.

The court rejected both the plaintiff's claim for substantial indemnity and the defendant's request for a 50% reduction, but factored the late abandonment of the consequential damages claim into the award.

Costs were fixed at $55,000 all-inclusive.

The plaintiffs sued a father and son after the son breached an agreement of purchase and sale for a residential property.

The son forfeited his deposit, and the plaintiffs sought further damages from the father, alleging the son acted as his agent or that the father induced the breach.

The father moved for summary judgment to dismiss the action against him.

The court granted the motion, finding no evidence of an agency relationship or that the father intended to induce a breach of contract.

The court held that partial summary judgment was appropriate to remove the father from the action, leaving only the quantification of damages against the son.

The appellant appealed a decision of the Consent and Capacity Board confirming her treating physician's finding that she was incapable of consenting to treatment with anti-psychotic medications.

The appellant argued the Board erred in applying the capacity test under the Health Care Consent Act and misapprehended the evidence.

The Superior Court of Justice dismissed the appeal, finding the Board correctly applied the legal principles from Starson v. Swayze and reasonably concluded the appellant could not appreciate the reasonably foreseeable consequences of her treatment decision.

The plaintiff purchased an edge banding machine from the defendant for its cabinetry business.

The machine failed to perform its more sophisticated functions, such as rounding, which the court found to be a breach of implicit terms of the contract.

However, because the plaintiff had accepted the goods under the Sale of Goods Act, the breach of condition was treated as a breach of warranty.

The court found the plaintiff failed to fully mitigate its damages by not taking reasonable steps to sell the machine.

Damages were awarded to the plaintiff for 50% of the contract price plus HST, totaling $76,275.

The plaintiff brought a motion for summary judgment against his title insurer, FCT, for amounts owing under a policy following a mortgage fraud.

The parties agreed that some amount was owing, leaving only the quantification of interest and coverage of certain fees in dispute.

The court held that the plaintiff was entitled to compound interest as provided in the mortgage, rejecting FCT's argument to substitute statutory interest.

However, the court dismissed the plaintiff's claims for a notice of sale fee and a lender's fee, finding they were not covered under the policy's terms.

The appellants, owners of waterfront properties on Nottawasaga Bay, appealed a decision of the Coordinator in the Office of the Surveyor General confirming a municipal resurvey under the Surveys Act.

The resurvey extended two road allowances straight across accreted lands to the water's edge, effectively cutting off the appellants' water access.

The Divisional Court allowed the appeals, finding that the Coordinator's decision was unreasonable.

The Court held that the Surveys Act does not displace the common law principles of accretion, which dictate that accreted lands attach to riparian properties and should be equitably allocated.

The matter was remitted for a trial of an issue regarding whether the survey should be confirmed with or without amendments.

The applicant employer sought judicial review of a Pay Equity Hearings Tribunal decision finding that the employer and union violated the Pay Equity Act by agreeing to reduce the wages of a female-dominated job class.

The employer argued the reduction was a temporary measure to avoid contracting out work and was justified under exceptions in the Act.

The Divisional Court applied a reasonableness standard of review and upheld the Tribunal's decision, finding that the Act prohibits reducing wages of employees who have achieved pay equity, and that the Tribunal reasonably concluded it lacked jurisdiction to order the union to contribute to the wage adjustments.

The appellant appealed a trial judge's decision on a threshold motion in a motor vehicle accident case, which found her injuries did not meet the statutory threshold under the Insurance Act.

The respondent cross-appealed the trial judge's costs award, arguing the threshold decision should have been considered in the costs analysis.

The Divisional Court dismissed the appellant's appeal, finding no palpable and overriding error in the trial judge's assessment of the medical evidence.

The court granted the respondent's cross-appeal on costs, applying the recent decision in Saleh v. Nebel, and remitted the costs issue to the trial judge.

The applicant employer sought judicial review of two Grievance Settlement Board (GSB) decisions reinstating two Transit Safety Officers who were discharged for misconduct.

The GSB had found that the employer breached a sunset clause by considering expired disciplinary records when deciding to terminate the employees.

Relying on the Molson's case, the GSB concluded it was bound to void the discipline entirely and reinstate the employees with full compensation.

The Divisional Court granted the applications for judicial review, holding that the GSB erred by failing to consider all relevant circumstances before applying Molson's and by failing to consider its statutory discretion to substitute a penalty under s. 48(17) of the Labour Relations Act.

The decisions were quashed and remitted to the GSB.

The applicant, a chartered accountant, sought judicial review of an Appeal Committee decision that revoked his licence for professional misconduct related to a tax minimization plan.

The applicant argued the Appeal Committee applied the wrong standard of review and impermissibly interfered with the Discipline Committee's findings of fact.

The Divisional Court dismissed the application, finding that the Appeal Committee correctly applied a reasonableness standard and did not overturn factual findings, but rather reasonably concluded that the applicant's reliance on a colleague's tacit approval of the plan did not excuse his misconduct.

The applicant sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing his discrimination application at a summary hearing.

The applicant alleged he was not interviewed for a municipal job due to discrimination based on race and origin, and that the job posting's preference for 'lived immigration experience' was discriminatory.

The Divisional Court found the HRTO's conclusion that the applicant failed to show his non-Canadian experience was disregarded was reasonable.

The Court also rejected the applicant's claims of procedural unfairness and bias by the HRTO.

The application for judicial review was dismissed.

The College of Nurses of Ontario appealed a decision of its Discipline Committee dismissing allegations of patient abuse against a registered nurse.

The allegations involved the nurse allegedly slapping a psychiatric patient across the face.

The Discipline Committee dismissed the allegations after finding the evidence of the two complaining nurses to be inconsistent and not credible, while finding the respondent nurse's denials to be plausible.

The Divisional Court applied the reasonableness standard of review and upheld the Committee's decision, finding that the credibility assessments and factual findings were defensible and supported by the evidence.

The appellant insurer sought judicial review of a decision upholding an arbitrator's finding that the respondent insured was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The insured, while using his vehicle as a taxi, was assaulted by a passenger, pushed, and slipped on ice while attempting to close the vehicle's door.

The Divisional Court dismissed the application, finding it was reasonable for the arbitrator and Director's Delegate to conclude that the incident arose out of the ordinary use or operation of an automobile and that the use or operation was a direct cause of the impairment, as the assault was not an intervening act that broke the chain of causation.

Following the dismissal of the appellant's appeal, the parties made written submissions on costs.

The successful respondent sought substantial indemnity costs of $6,400, while the appellant argued for no costs.

The court found no justification to depart from the usual rule of partial indemnity costs and fixed the costs payable by the appellant to the respondent at $3,500 all-inclusive.