David R. Aston

Following the dismissal of the appellants' appeal regarding insurance coverage for stolen marijuana plants, the respondent insurer sought costs.

The court awarded the respondent partial indemnity costs, noting that while the respondent was entirely successful, the legal issues were novel and there was no guiding precedent.

Costs were fixed at $6,000 inclusive of HST and disbursements, reflecting a modest allowance for junior counsel.

The appellant sought an easement over Crown lands subject to unpatented mining claims held by the respondent to build a road to a proposed mine.

The respondent refused consent, intending to build a railway on the same corridor.

The Mining and Lands Commissioner (MLC) dismissed the appellant's application to dispense with consent.

On appeal, the Divisional Court found the MLC's decision unreasonable, as it misinterpreted the Mining Act by failing to apply the limitations on surface rights to unpatented claims on Crown land and improperly required the appellant to prove a public interest.

The Court substituted its own decision, dispensing with the respondent's consent, finding no evidence that the road would significantly interfere with actual or proposed mining activities on the claims.

The applicant union sought judicial review of an Ontario Labour Relations Board decision dismissing an unfair labour practice complaint.

The union alleged the employer violated the statutory freeze period under s. 86 of the Labour Relations Act by reducing employee benefits after the applicant displaced the incumbent union.

The Board found that the employer's obligation was only to pay premiums to the incumbent union's trust fund, which became impossible upon displacement.

Applying the 'reasonable expectations' test, the Board concluded the employer's substituted benefit plan was reasonably comparable and did not violate s. 86.

The Divisional Court held the Board's decision was reasonable and dismissed the application.

The applicant insurer sought judicial review of a FSCO Director's Delegate decision upholding an Arbitrator's finding that the respondent suffered a catastrophic impairment.

The respondent had recorded a Glasgow Coma Scale (GCS) score of 9 several days after a motor vehicle accident, which the insurer argued was confounded by medication and other injuries rather than brain impairment.

The Divisional Court dismissed the application, holding that the standard of review is reasonableness and that the SABS regulation uses the GCS score as a proxy measurement without requiring an inquiry into the patient's prognosis or the specific cause of the lowered score.

Following an appeal and cross-appeal where success was divided, the parties made written submissions on costs.

The Divisional Court ordered no costs for the appeal due to the divided success, noting the significant finding of oppressive conduct by the appellants.

The court also set aside the application judge's costs award of $25,000 due to the altered outcome, but upheld the award of $14,790 plus HST for accounting fees, as the appellants' conduct necessitated retaining accountants.

The moving parties and responding parties both brought motions under s. 21(5) of the Courts of Justice Act to vary or set aside an earlier order that denied a stay of a Renewable Energy Approval but granted an injunction subject to an undertaking as to damages.

The Divisional Court held that Rule 63.02 does not confer jurisdiction to stay a Renewable Energy Approval, as it is not an 'order' within the meaning of the rule.

The court found no error in the motion judge's exercise of inherent jurisdiction to grant injunctive relief under Rule 40 instead.

Both the motion and cross-motion were dismissed.

The appellant physician appealed findings by the Discipline Committee of the College of Physicians and Surgeons that he engaged in sexual abuse of a patient and professional misconduct.

The appellant argued the Committee failed to properly consider inconsistencies in the complainant's evidence and video surveillance footage.

The Divisional Court dismissed the appeal, finding the Committee's credibility assessments and conclusions were reasonable and supported by the evidence.

The tenant appealed an order of the Landlord and Tenant Board terminating her tenancy and evicting her for non-payment of rent.

She argued that the Board breached procedural fairness by denying her request for a third adjournment to summons a witness from Social Services, and that she did not owe the rent arrears.

The Divisional Court dismissed the appeal, finding no breach of natural justice as the tenant had previously been granted two adjournments and failed to comply with interim orders to produce evidence.

The Board's finding on the rent arrears was reasonable based on the landlord's uncontradicted ledger evidence.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her complaint of discrimination and harassment.

The complaint arose from sexist blog posts made by a union president during a labour dispute.

The Divisional Court upheld the Tribunal's decision, finding it reasonable to conclude that the blog posts were not made 'in the workplace' and that the Tribunal appropriately considered the union president's Charter rights to freedom of expression and association when determining the posts did not constitute discrimination with respect to employment.

The appellant wife appealed a temporary order requiring her to advance $100,000 to the respondent husband for interim disbursements and legal fees.

The wife argued that the motions judge erred in his discretion and that there was a lack of procedural fairness because the notice of motion did not specifically request interim disbursements.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness and that the motions judge appropriately exercised his discretion given the serious credibility issues and the need for documentary disclosure.

The appellants appealed an order finding they acted oppressively toward the respondent, a 10% minority shareholder in a landlord corporation, by leasing property to their own company at below-market rent.

The Divisional Court upheld the finding of oppression regarding the failure to pay fair market rent after the initial lease term expired in 2010.

However, the court set aside the application judge's finding that the respondent reasonably expected triple rent for overholding, and reversed remedial orders directed at a non-party tenant corporation and for the period prior to 2010, finding that cash payments made to the respondent's principal had alleviated any unfair prejudice during that time.

The appellant appealed a decision of the Health Professions Appeal and Review Board regarding whether her Master's degree program was "primarily psychological in nature." The Divisional Court dismissed the appeal, finding that the Board conducted a detailed and nuanced examination of the material and that its decision was not demonstrably unreasonable.

The Court noted it was bound to afford deference to the Board's expertise.

No costs were ordered.

The applicant union sought judicial review of a supplementary interest arbitration award concerning per diem meal allowances for cabin personnel on a new low-cost carrier.

The union argued the arbitrator was functus officio and lacked jurisdiction to reverse his previous award.

The Divisional Court dismissed the application, finding that the arbitrator had jurisdiction to clarify an inherent contradiction in the initial award to reflect his manifest intention that the new service remain competitive as a low-cost carrier.

The arbitrator's decision to impose the mainline per diem rate was reasonable.

The appellant appealed a decision of the Discipline Committee finding her guilty of professional misconduct.

The appellant argued that the Committee improperly reversed the onus of proof and applied a different standard in scrutinizing the evidence.

The Divisional Court dismissed the appeal, finding that the Committee correctly articulated the law respecting burden of proof and credibility, and reasonably concluded there was sufficient evidence to establish professional misconduct.

The applicant, a certified general accountant, sought judicial review of a professional misconduct conviction based entirely on deemed admissions.

The applicant had failed to respond to a request to admit within the 20-day period due to personal stress and seeking new counsel.

The conduct committee dismissed his motion to withdraw the deemed admissions without providing reasons, and he was subsequently convicted without being permitted to call evidence.

The Divisional Court allowed the application, finding that the conduct committee's decision was unreasonable and that the failure to provide reasons for a decision of such significance constituted a breach of natural justice.

The applicant union sought a stay of a grievance arbitration hearing pending a judicial review application challenging interlocutory orders of the arbitrator, including an allegation of reasonable apprehension of bias.

The court applied the test for a stay, considering whether there was a serious issue to be tried, irreparable harm, and the balance of convenience.

Although the threshold for a serious issue was barely met, the court found the merits of the judicial review weak and noted that the alleged prejudice to the grievor was mitigated by ongoing suspension without pay regardless of the stay and by the potential for retroactive compensation.

The balance of convenience favoured allowing the arbitration process to continue while the judicial review remained pending.

The court declined to exercise its discretion to grant a stay.

The appellant appealed a Small Claims Court decision dismissing his professional negligence claim against his former solicitors.

The appellant argued the trial judge made palpable and overriding factual errors, applied an incorrect standard of proof, and created a reasonable apprehension of bias through excessive interventions.

The Divisional Court dismissed the appeal, finding the factual findings were supported by evidence, the correct standard of proof was applied, and the trial judge's interventions were appropriate attempts to understand the evidence rather than evidence of bias.

The moving party sought an extension of time to appeal a Small Claims Court decision dismissing its negligence claim against a mediator.

The mediator had issued a Certificate of Non-Compliance that erroneously referred to a separate legal action.

The Divisional Court dismissed the motion, finding no merit to the proposed appeal because the moving party could not establish any damages causally connected to the error, and any remedy would properly be against the Condominium Corporation rather than the mediator.

The applicant sought judicial review of a Law Society Appeal Panel decision dismissing his appeal from a Hearing Panel that denied his application for a paralegal licence.

The Hearing Panel found he did not meet the good character requirement because he had breached a previous undertaking not to provide unauthorized legal services.

The Divisional Court dismissed the applicant's motion to introduce fresh evidence and dismissed the application for judicial review, finding the Appeal Panel's decision was reasonable and supported by the evidence.

The plaintiff brought a motion for leave to appeal a decision of the motions judge, who had dismissed a civil contempt motion and refused to strike two affidavits.

The plaintiff argued he was denied the opportunity to cross-examine on the affidavits.

The Divisional Court dismissed the motion, finding the plaintiff had ample opportunity to seek cross-examination prior to the hearing.

The court held that the motions judge correctly applied the test for civil contempt, there was no conflicting jurisprudence, no reason to doubt the correctness of the order, and the proposed appeal did not involve matters of public importance.

Leave to appeal the costs order was also denied.

Costs of the motion were fixed at $3,500 against the plaintiff.