David A. Jarvis

Following a successful appeal that certified the action as a class proceeding, the parties were unable to agree on costs.

The appellants sought $186,293.81 on a partial indemnity basis, while the respondent suggested a range of $30,000 to $60,000.

Applying the principles of fairness and reasonableness, and considering awards in similar actions, the Divisional Court fixed the appellants' costs at $60,000 plus disbursements and GST, payable if the plaintiffs are successful in the pending appeal before the Court of Appeal.

Following the dismissal of the appellant's appeal, the parties were unable to agree on costs and filed written submissions.

The respondent College sought costs of $27,039.05, noting the extensive preparation required, including responding to constitutional arguments that were abandoned late.

The appellant argued the appeal was largely a repetition of an earlier interlocutory motion and suggested costs be fixed at $10,000.

The Divisional Court fixed the costs of the appeal payable by the appellant to the respondent at $19,000 in fees plus disbursements.

The applicant employer sought judicial review of a labour arbitrator's decision reversing a two-week suspension imposed on an employee for fighting.

The arbitrator found that the employee had not engaged in a fight, preferring the employee's viva voce evidence over written statements filed by the employer.

The Divisional Court dismissed the application, holding that the arbitrator's factual findings were not patently unreasonable and that the arbitrator correctly held the employer to the specific grounds assigned for discipline.

The appellants, former employees and beneficiaries of a pension plan, appealed two decisions of the Financial Services Tribunal regarding the employer's handling of the plan.

The Divisional Court held that the employer was not permitted to pay plan administration expenses out of the trust fund, as such amendments constituted an invalid revocation of the trust.

However, the Court upheld the employer's right to take contribution holidays in the defined benefit plan.

The Court also ruled that the employer could not use surplus funds from the defined benefit plan to cross-subsidize its contributions to a newly created defined contribution plan, and that the employer failed to provide proper statutory notice of the plan conversion.

The Tribunal's decision that it lacked jurisdiction to award costs out of the pension fund was upheld.

Following a successful appeal, the appellants sought their costs.

The Divisional Court fixed costs on a partial indemnity scale, allowing the disbursements as claimed but reducing the fees claimed due to duplication of time and excessive preparation time by junior counsel.

Applying the principles from Boucher, the court awarded each appellant $15,000 in fees, plus their respective disbursements, payable by the respondents.

The Law Society of Upper Canada appealed a decision of the LSUC Appeal Panel, which had set aside a Hearing Panel's penalty of disbarment for a lawyer found guilty of professional misconduct and ungovernability.

The lawyer cross-appealed the finding of professional misconduct.

The Divisional Court dismissed the lawyer's cross-appeal, finding the Appeal Panel correctly applied the reasonableness standard to the misconduct finding.

However, the Court allowed the Law Society's appeal, holding that the Appeal Panel erred by admitting fresh medical evidence and conducting a trial de novo on penalty rather than reviewing the Hearing Panel's decision on a reasonableness standard.

The penalty of disbarment was reinstated.

The appellant, Chicken Farmers of Ontario, appealed the dismissal of its motion for an interlocutory injunction to prohibit the respondents from producing and marketing chicken without a quota.

The respondents argued they were exempt from the provincial quota system because they exported all their chicken to the United States.

The Divisional Court allowed the appeal, finding the motion judge erred by treating the matter as a private law dispute and failing to recognize the public interest in enforcing the regulatory scheme.

Applying the RJR MacDonald test, the Court found a serious issue to be tried, irreparable harm to the integrity of the supply management system, and that the balance of convenience favoured granting the injunction.

The applicants, a group of dairy farmers who export their milk, sought judicial review of a decision by the Minister of Agriculture and Food.

The Minister had rescinded a Tribunal order that would have allowed the applicants to export milk without holding provincial quota.

The applicants challenged the Minister's decision on administrative law grounds, including bias and inadequate reasons, and argued that the provincial milk marketing scheme was an ultra vires attempt to regulate international trade.

The Divisional Court dismissed the application, finding that the provincial scheme was a valid regulation of intraprovincial trade that only incidentally affected exports, and that the Minister's decision was not patently unreasonable, biased, or procedurally unfair.

The appellants appealed an Ontario Municipal Board (OMB) decision granting minor variances to the respondents for the construction of a new home.

The Divisional Court allowed the appeal, finding that the OMB erred in law by failing to properly apply the four-part test for minor variances under section 45(1) of the Planning Act.

The Court held that the OMB unreasonably focused almost exclusively on the impact of the variances, neglecting to adequately consider their size, desirability, and whether they maintained the general intent and purpose of the zoning by-law and official plan.

The matter was remitted to a different panel of the OMB.

The appellants appealed a decision dismissing their motion to certify a class proceeding against the provincial government.

The action alleged negligence, breach of statutory duty, and misfeasance in public office arising from the government's decision to discontinue entering into Special Needs Agreements for profoundly disabled children.

The Divisional Court allowed the appeal, finding that the motion judge erred in concluding it was plain and obvious the negligence claim could not succeed.

The court held that the statement of claim disclosed arguable causes of action and that a class proceeding was the preferable procedure.

The respondent tripped and fell on a city sidewalk, sustaining a shoulder injury.

She commenced an action against the city six months later, beyond the three-month limitation period in the Municipal Act.

The motion judge dismissed the city's motion for summary judgment, finding a genuine issue for trial regarding when the respondent discovered the severity of her injury.

On appeal, the Divisional Court reversed the decision, holding that the limitation period begins when the plaintiff knows some damage has occurred, not when the full extent of the injury is diagnosed.

The appeal was allowed and the action dismissed.

Following a successful appeal that dismissed the plaintiff's action due to a five-year delay, the appellant sought partial indemnity costs for the motion for leave and the appeal.

The respondent opposed the costs award, arguing impecuniosity and blaming his former solicitor for the delay.

The Divisional Court rejected the respondent's arguments, finding that a costs award was appropriate.

The court fixed the costs payable to the appellant at $7,500 all-inclusive, considering the overall reasonableness of the amount.

The United States of America and the Federal Trade Commission appealed a decision setting aside an ex parte Mareva injunction and Anton Piller order against the respondents, who operated a telemarketing scheme selling Canadian lottery tickets to U.S. residents.

The appellants alleged the respondents engaged in fraudulent misrepresentation by demanding up-front fees.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusions that the appellants failed to establish a strong prima facie case of common law fraud or a real risk of asset dissipation.

The Toronto Transit Commission sought judicial review of an arbitration board's decision that found a two-year lockout for employees failing safety training to be unreasonable.

The Divisional Court granted the application, holding that the board acted unreasonably by implying a duty on the employer to act reasonably without identifying any express language in the collective agreement limiting management rights, nor finding bad faith or disciplinary action.

The award was quashed and remitted to the board to consider whether the lockout intruded on seniority or working conditions provisions, or constituted a disciplinary penalty.

The plaintiff's action was struck from the trial list after he failed to attend the trial.

Five years later, a motion judge restored the action, applying the test for dismissal for delay.

The defendant appealed.

The Divisional Court allowed the appeal, finding the motion judge erred in principle by not applying the test for setting aside a judgment for failure to attend trial, which requires the plaintiff to explain the failure to attend, explain the delay in seeking relief, and demonstrate that the action has merit.

Given the plaintiff's unexplained five-year delay and lack of evidence showing merit, the appeal was allowed and the action dismissed.

The College of Physicians and Surgeons of Ontario sought judicial review of an interlocutory order made by its Discipline Committee.

The Committee had ordered the production of confidential third-party medical and counselling records relating to several complainants who alleged sexual abuse by the respondent physician.

The Divisional Court dismissed the application, finding that the Committee reasonably applied the principles from R. v. Mills by analogy to balance the physician's right to make full answer and defence against the complainants' privacy rights.

The Court upheld the disclosure orders for four of the five complainants.

The tenant appealed a decision of the Ontario Rental Housing Tribunal.

During the hearing, the Tribunal indicated it would only consider oral evidence and submissions, refusing to deal with matters contained in the documentary record.

The Divisional Court held that this ruling amounted to a judicial error and a denial of natural justice, as it ran the risk of excluding relevant documents.

The appeal was allowed and the matter remitted for a new hearing.

The applicant student was required to withdraw from his course of studies at the respondent college.

He appealed the decision but received disclosure of the case against him only three days before the hearing.

His requests for a short adjournment to prepare a response were denied.

The Divisional Court held that the refusal to grant an adjournment in these circumstances was a denial of natural justice and procedural fairness.

The decisions of the appeal panel and the Ombudsman were quashed, and the matter was remitted to a newly constituted appeal panel.

The City of Brampton brought a motion to strike portions of an affidavit filed by the applicants on the basis that the paragraphs contained submissions, opinions, irrelevant information, or attempted to introduce new evidence not before the Assessment Review Board.

The court found that the applicants' arguments raised the possibility of a denial of natural justice, making some evidence about the proceedings before the Board necessary.

However, the court struck several paragraphs of the affidavit for being redundant, argumentative, or containing inadmissible opinion.

The appellants appealed a decision dismissing their application under s. 297 of the Corporations Act regarding an election irregularity at a non-profit organization.

The Divisional Court upheld the motion judge's finding that the irregularity did not go to the heart of the electoral process or lead to a result contrary to the wishes of the majority.

The appeal was dismissed with costs awarded to the respondents.