Carolyn J. Horkins

The tenant appealed a Small Claims Court judgment awarding the landlord net damages for property damage to a leased commercial premises.

The tenant advanced four grounds of appeal, including evidentiary rulings, credibility assessments, and the trial judge's failure to advise her to retain counsel.

The Divisional Court dismissed the appeal, finding no errors of law or palpable and overriding errors of fact.

The court awarded the landlord substantial indemnity costs due to a Rule 49 offer to settle and the tenant's confusing and unnecessarily expensive approach to the appeal.

The defendant, an undischarged bankrupt, sought leave to appeal an order that required him to pay $40,250 in previous costs orders as a condition to set aside a noting of default and allow him to file a statement of defence.

The motion judge had found that the defendant failed to prove impecuniosity, despite his bankruptcy, due to unchallenged evidence suggesting undisclosed assets.

The court dismissed the motion for leave to appeal, finding no serious doubt as to the correctness of the motion judge's discretionary order and that the matter did not involve questions of general public importance beyond the immediate parties.

Costs of $5,000 were awarded to the plaintiffs.

The appellants appealed a Small Claims Court decision finding the individual appellant personally liable on a credit application guarantee.

The appellants argued that trial fairness was compromised by the Deputy Judge's excessive intervention and cross-examination of witnesses.

The Divisional Court agreed, finding that the Deputy Judge crossed the line of permissible intervention by extensively cross-examining the appellants' witnesses and acting as a participant in the trial.

The appeal was allowed, the judgment set aside, and a new trial ordered before a different judge.

The appellant brought a statutory appeal from a decision of the Assessment Review Board confirming an earlier order that corrected a typographical error in a property assessment.

The parties reached a settlement and requested a consent order under section 134 of the Courts of Justice Act to provide a corrected base rate for the assessment and realty taxes.

The Divisional Court granted the requested order to give effect to the parties' agreement and avoid extending the period of miscalculation.

The applicant sought judicial review of an arbitrator's decision regarding Statutory Accident Benefits without first appealing to the Director's Delegate as required by s. 283(1) of the Insurance Act.

After a previous stay, the applicant's late appeal to the Director's Delegate was dismissed.

The Divisional Court dismissed the current application for judicial review, holding that it lacked jurisdiction to review the arbitrator's decision directly and that the applicant must instead seek judicial review of the Director's Delegate's final decision.

The appellant employee was placed on a temporary unpaid layoff and later claimed constructive dismissal.

The motion judge granted summary judgment to the employer, finding the employee had acquiesced to the layoff.

On appeal, the Divisional Court set aside the order, holding that the motion judge erred in law by finding acquiescence without first analyzing the terms of the employment contract to determine if the employer had the right to lay off the employee, as required by the Supreme Court's two-step test in Potter.

The Regional Municipality of Halton appealed an Ontario Municipal Board decision that overturned its new development charges by-law.

The new by-law eliminated distinctions between unit sizes, which the Board found resulted in smaller units unfairly subsidizing larger ones.

The Divisional Court dismissed the appeal, holding that the Board reasonably applied the Development Charges Act and had sufficient evidence to find cross-subsidization.

The Board's decision to reinstate the former by-law's categories was a reasonable exercise of its remedial authority.

The appellant appealed a jury trial decision dismissing her personal injury claim against the Toronto Transit Commission for an alleged fall on a bus.

She argued the trial judge erred by refusing to instruct the jury on spoliation regarding overwritten video evidence, allowing cross-examination on her doctor's complete clinical notes, and permitting references to pre-existing injuries.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's evidentiary rulings or jury instructions, as the appellant failed to prove intentional destruction of evidence and the medical records were relevant to her claims.

The applicant sought judicial review of the City of Toronto's decision to deny his organization a special event permit to host a Canada Day event in a public park.

The City had denied the permit due to a history of serious health, safety, and by-law infractions at the applicant's previous events.

The Divisional Court dismissed the application, finding no breach of procedural fairness, no reasonable apprehension of bias, and no violation of the applicant's Charter right to freedom of peaceful assembly, as the City's regulation of park use was reasonable.

The appellant appealed a decision of the Licence Appeal Tribunal suspending its liquor licence for 55 days after a patron was overserved, became intoxicated, and was subsequently struck and killed by a vehicle.

The Divisional Court found that the tribunal reasonably concluded the appellant breached the Liquor Licence Act by serving an intoxicated person and permitting drunkenness on the premises.

The court held that the tribunal applied the correct legal tests, properly weighed the evidence, and imposed a reasonable penalty.

The appeal was dismissed.

The appellant subcontractor appealed a motion judge's decision dismissing its claim for payment for extra work performed on two construction projects.

The contract required written authorization for any changes or extras.

The appellant argued that the respondent general contractor waived this requirement by verbally requesting the extra work and signing purchase orders confirming the work was done.

The majority of the Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent's conduct did not amount to an unequivocal and conscious decision to abandon its right to rely on the strict terms of the contract.

A dissenting judge would have allowed the appeal, finding that the respondent's pattern of requesting extra work outside the scope of the contract constituted waiver by conduct.

The moving party university brought a motion to set aside a decision of a single judge of the Divisional Court who refused to strike an affidavit filed by the responding party association on an application for judicial review of a labour arbitration award.

The arbitration upheld the termination of a professor for failing to grade students objectively.

The Divisional Court panel found that the motions judge erred in law by admitting the affidavit, as it did not meet the narrow Keeprite exception for admitting new evidence on judicial review.

The motion was granted and the affidavit was struck in its entirety.

The applicant sought judicial review of an interlocutory order made at a Small Claims Court settlement conference in a medical negligence action.

The order required the applicant to produce expert reports and directed third-party hospitals and doctors to produce the applicant's medical records.

The Divisional Court held that the Small Claims Court judge had jurisdiction to order the production of expert reports under the Rules of the Small Claims Court.

However, the court concluded that the Small Claims Court lacks jurisdiction to order third-party production of documents.

The application was allowed in part, and the third-party production order was set aside.

The respondent subcontractor obtained default judgment against the general contractor for unpaid work and subsequently sued the appellant owners for breach of statutory trust under the Construction Lien Act.

The motion judge granted summary judgment against the owners and their directors.

On appeal, the respondent conceded the motion judge erred in finding a subcontractor could be a beneficiary of the owner's trust under s. 7(1).

The respondent alternatively argued the owners were liable under s. 13 for having 'effective control' of the general contractor by paying its invoices.

The Divisional Court rejected this argument, holding that merely paying invoices does not constitute effective control of a corporation's relevant activities.

The appeal was allowed and the claim against the owners dismissed.

The Director of the Ontario Racing Commission sought judicial review of a Panel decision that exonerated a horse trainer from an absolute liability offence based on a due diligence defence.

The horse had tested positive for a prohibited drug after winning a race.

The Divisional Court held that the Panel's decision was unreasonable because a standard of care defence is not available for an absolute liability offence.

The Court set aside the Panel's decision, restored the original finding of a rule violation, and exercised its jurisdiction to impose a penalty of no fine and no suspension, leaving the horse's disqualification intact.

The respondent children's aid society brought a motion to dismiss the parents' appeal of a Crown wardship order for delay.

The parents had failed to order transcripts or perfect their appeal within the required timelines under the Family Law Rules, instead engaging in numerous other unsuccessful legal proceedings.

The Divisional Court applied the factors for dismissing a child protection appeal for delay, finding that the parents had no prospect of ordering the transcripts, the delay prejudiced the children's need for permanency, and the appeal lacked merit.

The motion was granted and the appeal was dismissed.

The applicant sought judicial review of the Registrar's decision to refuse to process its application for a new liquor licence.

The Registrar had refused to process the application, arguing the applicant was substantially related to the existing licensee and was attempting to evade public interest protections, and insisted the applicant file a transfer application instead.

The Divisional Court allowed the application, finding that under the Liquor Licence Act, the Registrar has no statutory authority to refuse an application outright.

Instead, the Registrar must issue a proposal to refuse the application, which triggers the applicant's right to a hearing.

The matter was remitted to the Registrar to process in accordance with the Act.

The applicant municipality sought judicial review of two orders by an adjudicator of the Information and Privacy Commissioner requiring the disclosure of records relating to the municipality's IT system and service contracts.

The municipality had denied access to portions of the records, claiming various exemptions under the Municipal Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the application, finding that the adjudicator's decisions that the exemptions for third party information, advice and recommendations, security, and valuable government information did not apply were reasonable.

The applicant, an RCMP officer on long-term sick leave, sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB).

The HPARB had upheld a decision by the College of Physicians and Surgeons' Inquiries, Complaints and Reports Committee to take no further action on her complaint against an RCMP Occupational Health Services Officer.

The applicant alleged the physician arbitrarily changed her medical profile from employable with restrictions to unemployable without examining her.

The Divisional Court dismissed the application, finding the HPARB's conclusion that the physician performed a reasonable review of the medical information and exercised appropriate clinical judgment was reasonable.

The Ministry appealed a costs order awarding the plaintiffs $150,000 in partial indemnity costs following a motion to join the Ministry as a party and amend the statement of claim.

The Ministry argued the costs were excessive for a pleadings motion and that the judge failed to properly apply Rule 57.01.

The Divisional Court dismissed the appeal, finding that the motion was treated as a 'mini-trial' by the Ministry, the issues were of significant importance, and the judge properly considered the relevant factors in exercising his discretion to fix costs.