Arthur M. Gans

The responding party sought costs after successfully defending an application for leave to appeal.

The moving party argued for divided success and that costs should be in the cause.

The court rejected these arguments, emphasizing the need for immediate costs sanctions to encourage negotiated resolutions in high-conflict litigation.

The court awarded the responding party $3,500 in fees plus GST and disbursements.

The appellant tripped and fell on a ramp while exiting the respondent's store, sustaining injuries including a torn rotator cuff.

At trial, the judge awarded $13,598 in damages after finding the appellant 50% contributorily negligent and concluding her shoulder injury was not caused by the fall.

On appeal, the Divisional Court found the trial judge made palpable and overriding errors by ignoring medical and lay evidence regarding causation and misapplying the principles of causation and apportionment.

The Court reduced the appellant's contributory negligence to 15% and reassessed damages, awarding a total of $104,044.41.

The appellant appealed the dismissal of his personal injury action following a jury trial.

The jury found the appellant sustained no injuries in a motor vehicle accident, despite the trial judge ruling that the appellant met the statutory threshold.

The appellant argued that defence counsel's closing address, which improperly focused on the appellant's immigrant status and speculated on how he would use a damages award, was inflammatory and prejudiced the jury.

The Divisional Court allowed the appeal and ordered a new trial, finding that the comments were irrelevant, offensive, and likely swayed the jury based on improper considerations, and that the trial judge's correcting instruction was inadequate.

The applicant physician sought judicial review to quash a motion by the hospital's Medical Advisory Committee (MAC) requiring him to undergo independent conduct and clinical assessments before the MAC would make a recommendation on his reappointment application.

The applicant argued the MAC's process lacked procedural fairness and was tainted by bias due to a history of conflict and a failure to provide timely disclosure of complaints.

The Divisional Court dismissed the application as premature, finding that the hospital had a statutory duty to assess qualifications and that the applicant had adequate alternative remedies, including a full hearing before the hospital board and an appeal to the Health Professions Appeal and Review Board, to address any procedural unfairness.

The appellant, a recipient of disability benefits, applied for a retroactive special diet allowance for the period from June 1998 to November 2003.

The Director denied the application, and the Social Benefits Tribunal dismissed the subsequent appeal.

On appeal to the Divisional Court, the appellant argued the Tribunal erred in law by not applying the relevant regulation retroactively and breached natural justice by requiring corroborative evidence without notice.

The Divisional Court dismissed the appeal, finding the Tribunal made no error of law in determining the facts did not justify a retroactive award, and held there was no breach of procedural fairness as the onus was on the appellant to prove his claim.

The applicant school board sought judicial review of an arbitrator's decision that found two special education positions fell within the teachers' bargaining unit rather than being excluded as principal or vice-principal positions.

The school board argued the arbitrator misinterpreted the Education Act and the collective agreements, and that he lost jurisdiction by delaying his decision for over two years.

The Divisional Court dismissed the application, finding the arbitrator's interpretation was not patently unreasonable and that the statutory time limit for rendering a decision is directory rather than mandatory.

The applicant, a former officer of Nortel, sought judicial review to prohibit the Ontario Securities Commission from proceeding with a hearing against him.

He argued that the Commission's prior settlement with Nortel, which included admissions of misconduct by its managers, created a reasonable apprehension of bias against him.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative proceedings before the Commission had an opportunity to consider the matter and hear evidence regarding the applicant's actual role.

The appellant law firm appealed an order dismissing its motion for a declaration that certain bank accounts in the respondent's name were held in trust for the appellant, and for a garnishment order.

The Divisional Court found that the motions judge erred in applying the doctrine of res judicata, as the trust claim was not part of the earlier proceedings regarding personal liability.

However, the appeal was dismissed because garnishment under Rule 60.08 was not the proper procedure to resolve a disputed trust relationship.

The dismissal was without prejudice to the appellant commencing a separate action.

Leave to appeal costs was granted, and the costs order was varied to a partial indemnity basis.

The applicant union sought judicial review of an Ontario Labour Relations Board decision upholding the assignment of certain I-beam installation work to a rival union.

The applicant argued the Board breached procedural fairness by failing to consider twenty drawings submitted with its reply.

The Divisional Court dismissed the application, finding the Board had considered the drawings and its decision was not patently unreasonable.

The appellant brought a motion for leave to introduce fresh evidence and a motion to set aside an order of a single judge quashing her appeal.

The underlying appeal was from a Law Society Hearing Panel's decision to recuse itself and the Appeal Panel's decision to quash her appeal of that recusal.

The Divisional Court dismissed the motion for fresh evidence as the proposed evidence was irrelevant to whether the appealed decision was interlocutory.

The Court also dismissed the motion to set aside the order, finding no error in the conclusion that the decision appealed from was interlocutory and therefore not subject to appeal under the Law Society Act.

The appellant brought a motion to consolidate the hearing of a motion to set aside a 2007 order with a motion to set aside a 2003 order.

The Divisional Court dismissed the motion to consolidate, noting the appellant had ample time to bring the 2003 motion on for hearing and failed to do so, and that the 2007 order was a discrete matter.

The applicant physician brought an application for judicial review regarding a referral to the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The applicant argued that the Associate Registrar lacked the statutory authority to appoint investigators and lacked reasonable and probable grounds to do so.

The Divisional Court dismissed the application as premature, holding that the threshold jurisdictional issues could and should be raised before the Discipline Committee prior to any hearing on the merits.

Costs of $5,000 were awarded to the respondent College.

Seven generic drug manufacturers sought judicial review of a decision by the Executive Officer of the Ontario Public Drug Programs to designate Apotex's product, Apo-Lisinopril, as a benefit under the Ontario Drug Benefit Formulary.

The applicants argued that Apotex could not meet the supply pre-condition at the time of its application due to a patent injunction.

The Divisional Court dismissed the application, finding that the Executive Officer correctly interpreted the regulations to require a prospective assessment of the manufacturer's capability to supply the product to meet anticipated demand, rather than requiring sufficient inventory on hand at the moment of application.

The applicants sought leave to bring an application for judicial review before a single judge of the Superior Court pursuant to s. 6(2) of the Judicial Review Procedure Act, arguing urgency.

The matter concerned the proposed designation of Apotex Inc.'s version of Lisinopril as a benefit under the Ontario Drug Benefit Act.

The respondent Minister opposed the application, arguing the urgency was self-created and economic loss was insufficient.

The court granted leave, finding the potential economic loss significant and the applicants' prior inaction not fatal.

The applicant sought judicial review of a decision by the Appeal Tribunal of the Certified General Accountants Association of Ontario.

The Appeal Tribunal had determined that the Competence Tribunal lacked jurisdiction to make compensatory orders, an issue not raised by the parties, without giving the applicant an opportunity to make submissions.

The Divisional Court held that the Appeal Tribunal breached the duty of fairness by deciding matters not before it without allowing the parties to respond.

The decision was quashed and remitted to a differently constituted panel for a new hearing.

The appellant wife appealed a decision dismissing her motion for judgment to enforce minutes of settlement.

The motions judge had found that the parties entered into a binding written settlement but directed a trial to determine whether there was a subsequent oral agreement to vary the terms.

The Divisional Court allowed the appeal, holding that the motions judge erred in failing to enforce the binding written contract, especially since the husband had not brought a cross-motion regarding the alleged oral variation.

A concurring opinion noted that under s. 55(1) of the Family Law Act, any agreement to amend a domestic contract must be in writing, rendering the alleged oral variation unenforceable.

The defendants sought leave to appeal a decision dismissing their Rule 21 motion to strike the plaintiff's amended statement of claim.

The defendants argued that the plaintiff was not entitled to seek declaratory relief under Canadian or American law.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motions judge's decision.

The court noted that issues regarding the applicability of US law to a cross-border declaration could be litigated later in a motion for summary judgment.

The applicant sought judicial review of the Ontario Human Rights Commission's decision to refuse to investigate his human rights complaint.

The Commission had determined that the complaint was more appropriately dealt with under the Crown Employees Collective Bargaining Act and the Labour Relations Act, as the applicant had previously grieved his dismissal and reached a settlement through his union.

The Divisional Court dismissed the application, finding that the Commission's decision was not patently unreasonable because the applicant had access to an arbitration procedure capable of adjudicating human rights issues and had already reached a settlement.

The landlord appealed an order of the Ontario Rental Housing Tribunal granting the tenant a $10,000 rent abatement for harassment and interference with parking.

The Divisional Court upheld the finding of harassment, noting the landlord's threats to report the tenant to social assistance.

However, the court found no evidence to support the finding of parking interference, as the tenant chose to park in an unassigned spot.

The appeal was allowed in part, and the rent abatement was reduced to $6,500.

The applicant sought judicial review of a college appeal committee's decision upholding his involuntary withdrawal from a nursing program.

He alleged a reasonable apprehension of bias because one panel member, the college registrar, had previously reviewed his file and discussed his case with him.

A majority of the Divisional Court found that the prior undisclosed involvement did create a reasonable apprehension of bias.

However, the Court unanimously dismissed the application, concluding that the applicant had impliedly waived any objection by failing to raise the issue at the hearing despite being represented by counsel.