David R. Aston

The moving parties brought a motion for leave to appeal an order of Justice Koehnen.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, the moving parties were ordered to pay costs of $10,000 to the Mintz Family Group and $7,500 to SRTS LLP.

The moving party sought leave to appeal a decision of the Assessment Review Board dated December 2, 2020.

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

The plaintiff bank brought a motion for summary judgment regarding three commercial loans to the defendants.

The defendants argued that the loan restructuring agreement was unauthorized, signed under duress, and that potential insurance coverage precluded judgment.

The court rejected these defences, finding that the corporate defendant's director had ostensible authority, there was no illegitimate pressure amounting to duress, and no evidence of relevant insurance existed.

Summary judgment was granted in favour of the plaintiff for the full amount of the debts.

The defendants brought a motion to set aside an ex parte order granting a Certificate of Pending Litigation (CPL) against their current residence and to discharge the CPL.

The plaintiff contractor had performed work on the defendants' cottage but failed to perfect a lien under the Construction Lien Act.

After the defendants sold the cottage and used the proceeds to buy a new home, the plaintiff obtained a CPL on the new home, claiming an equitable interest.

The court discharged the CPL, finding that the plaintiff failed to make full and fair disclosure on the ex parte motion, did not have a reasonable claim to an interest in the land, and was improperly attempting to revive expired lien rights, which would subvert the Construction Lien Act.

The applicant sought judicial review of two Human Rights Tribunal of Ontario decisions dismissing her application against her employer for alleged disability discrimination.

The Tribunal had found that the employer's actions, including placing the applicant on administrative leave, requesting an independent medical examination, and transferring her to another school, were not discriminatory and did not breach the duty to accommodate.

The Divisional Court applied the reasonableness standard of review, finding that the Tribunal's factual conclusions were supported by the evidence and that the applicant was improperly seeking to have the court reweigh the evidence.

The application for judicial review was dismissed.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed her complaint against her union, the Ontario Nurses' Association (ONA).

The applicant alleged the ONA failed in its duty to accommodate her disability.

The Divisional Court held that the Tribunal's decision was reasonable and procedurally fair, as neither the employer nor the union knew of the disability prior to termination, and the employer subsequently refused to consider reinstatement.

The court confirmed that a union cannot be found to impede accommodation efforts when the employer makes no such efforts.

The appellant developer appealed a Local Planning Appeal Tribunal decision that repealed a site-specific zoning by-law amendment, preventing the construction of a 16-storey mixed-use building in downtown Kingston.

The Tribunal had found the development incompatible with the area's heritage character and Official Plan policies.

On appeal to the Divisional Court, the appellant argued the Tribunal erred in law by prioritizing heritage over intensification, misapplying zoning by-laws, and improperly imposing height restrictions.

The Divisional Court dismissed the appeal, finding that the Tribunal's balancing of competing policies and assessment of the public interest involved questions of mixed fact and law, not extricable errors of law.

The applicant union sought judicial review of two arbitration awards concerning the termination of an occasional teacher.

In the first award, the arbitrator found the termination lacked just cause but ordered damages in lieu of reinstatement without prior notice to the parties.

In the second award, the arbitrator calculated the damages, including deductions for mitigation.

The Divisional Court dismissed the application, holding that the union should have raised its natural justice concerns regarding the first award with the arbitrator before proceeding to the damages hearing, as the arbitrator was not functus officio.

The court also found the arbitrator's mitigation analysis reasonable, distinguishing the facts from established appellate jurisprudence.

The applicant physician sought judicial review of interim orders made by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Physicians and Surgeons of Ontario, which restricted his medical practice due to concerns that his conduct exposed patients to harm.

The applicant argued the decisions were unreasonable and procedurally unfair.

The Divisional Court dismissed the application, finding that the ICRC reasonably relied on expert evidence to conclude patients were likely to be exposed to harm, and that the paper-based process followed by the ICRC met the required duty of procedural fairness for interim protective orders.

The moving party, a defendant in the action, brought a motion for leave to appeal.

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

The appellant tenant appealed a Landlord and Tenant Board decision refusing to review an earlier eviction order.

The tenant had already been evicted and the unit re-rented to a new tenant.

The Divisional Court dismissed the appeal as moot, finding that even if successful, the Board had no jurisdiction to restore possession of the unit or force the landlord to provide a comparable unit, meaning a successful appeal would have no practical effect.

This application concerned a dispute over a loan agreement and a supplementary security agreement involving pledged shares.

The applicants sought a declaration that the transfer of pledged shares to the respondents was null and void, or alternatively, relief under the Personal Property Security Act (PPSA) or equitable relief from forfeiture.

The court found that the applicants had defaulted on the loan agreement, and the respondents acted within their contractual rights under the security agreement to transfer the shares upon default, without needing to comply with PPSA notice requirements for disposal.

The court also denied equitable relief from forfeiture due to the applicants' conduct and lack of evidence of ability to pay.

The application was dismissed, and the applicants were ordered to pay substantial indemnity costs.

The appellant husband appealed an order directing the sale of a jointly owned property prior to trial.

The Divisional Court reviewed the motion judge's decision, noting that a joint owner has a prima facie right to an order for sale unless it would cause prejudice, hardship, or injustice.

The court found that the motion judge applied the correct legal test, properly weighed the evidence, and appropriately exercised her discretion in ordering the sale while protecting the husband's interests by restraining the wife from encumbering her own property.

The appeal was dismissed.

The appellant appealed a trial judgment that dismissed her claims for unjust enrichment and a joint family venture arising from her involvement in the respondent's dog grooming business during their common-law relationship.

The trial judge had found the appellant exaggerated her involvement and was adequately compensated.

On appeal, the Divisional Court found no palpable and overriding error in the trial judge's factual and credibility findings.

The court also rejected the appellant's argument that her trial counsel provided inadequate representation.

The appeal was dismissed.

The appellant appealed a motion judge's decision to impute an annual income of $130,000 to him for the purpose of calculating spousal support.

The appellant argued the motion judge erred by relying solely on previous earnings.

The Divisional Court dismissed the appeal, finding the motion judge considered multiple factors including age, education, skills, and local job market rates.

The court also dismissed a motion to introduce fresh evidence of the appellant's post-hearing employment, noting the proper procedure for changed circumstances is a new motion to change.

The Municipal Property Assessment Corporation (MPAC) appealed a decision of the Assessment Review Board regarding the valuation of a residential property.

The Board had found that MPAC failed to meet its burden of proving the property's current value and, as a result, fixed the assessment at the last uncontested value rather than determining the current value.

The Divisional Court allowed the appeal, holding that the Board's approach was contrary to the Assessment Act, which strictly requires the Board to determine the current value of the property.

The matter was remitted back to the Board.

The appellants appealed a trial judgment enforcing a construction lien against them.

The trial judge had applied the 'special circumstances' doctrine to extend the limitation period to add a tenant corporation as a defendant, and pierced the corporate veil to find the landlord corporation was an 'owner' under the Construction Lien Act due to common ownership.

The Divisional Court allowed the appeal, holding that the 'special circumstances' doctrine does not apply to the mandatory statutory deadlines in the Construction Lien Act, and that the corporate veil cannot be pierced absent conduct akin to fraud.

The respondent, having successfully defended an application for judicial review, sought partial indemnity costs of approximately $42,600.

The applicants argued the amount was excessive and disproportionate, noting their own full indemnity costs were only $21,000.

The Divisional Court agreed the hours spent and number of lawyers involved by the respondent were disproportionate to the issues, which involved no factual disputes.

The court fixed costs at $25,000 inclusive of disbursements and HST.

The appellant appealed his summary conviction, arguing the trial judge erred in assessing credibility.

The Superior Court of Justice found that the trial judge improperly treated the case as a credibility contest, accepted the complainant's evidence without adequate explanation, and rejected the appellant's exculpatory evidence without considering whether it raised a reasonable doubt.

The appeal was allowed, the conviction and sentence were set aside, and a new trial was ordered due to the trial judge's failure to apply the principles from R. v. W.(D.).

The appellant massage therapist appealed a decision of the Discipline Committee revoking his certificate of registration for professional misconduct, including sexual abuse of a patient.

The appellant argued the investigation was procedurally unfair, there was undue delay, and the Committee erred in its credibility assessments.

The Divisional Court dismissed the appeal, finding that any initial procedural unfairness was cured, there was no evidence of prejudice from delay, and the Committee's credibility findings were reasonable and entitled to deference.