Denise Bellamy

The plaintiff appealed a motions judge's decision regarding the interpretation of an offer to settle in a Small Claims Court proceeding.

The Divisional Court applied a correctness standard of review and found no legal error in the motions judge's conclusion.

Despite a slight ambiguity, the offer to settle, when read as a whole and in the context of Rule 14 of the Rules of the Small Claims Court, clearly remained open until one minute after the commencement of trial.

The appeal was dismissed, and the plaintiff was bound by the acceptance of the offer.

The appellants appealed a decision finding that a clause in their shareholders agreement was an unenforceable penalty.

The respondents cross-appealed the dismissal of their oppression application.

The Divisional Court allowed the appeal, holding that the application judge erred by reversing the onus of proof and failing to recognize the clause as a genuine pre-estimate of damages negotiated by sophisticated parties.

The cross-appeal was dismissed, as the application judge made no palpable and overriding error in finding no oppression.

A motion to introduce fresh evidence was also dismissed.

The applicant union sought judicial review of an arbitrator's decision that substituted a lengthy suspension without pay for the grievor's dismissal.

The Divisional Court dismissed the application on two grounds.

First, the applicant's unexplained delay of over a year and a half in perfecting the application caused prejudice to the respondent and warranted dismissal.

Second, the arbitrator's decision to deny back wages was entirely reasonable and within his broad remedial jurisdiction under the Labour Relations Act, 1995.

The court found no denial of procedural fairness, as the issue of penalty was in play throughout the hearing.

The tenant appealed a decision of the Landlord and Tenant Board on the basis of procedural fairness.

The tenant missed the hearing because she mistakenly believed it was scheduled for September 28 instead of September 21.

The Divisional Court found that the tenant's confusion was understandable given the Board's internal documentation and previous discussions.

Emphasizing that natural justice requires a broad interpretation of being reasonably able to participate, the Court allowed the appeal and remitted the matter to a different Member for a new hearing.

The appellant appealed a Master's decision dismissing his motion to vary an order under Rule 59.06 following a construction lien trial.

The Divisional Court found that the Master made no error of law, did not exercise his discretion improperly, and made no palpable or overriding error.

The Master correctly concluded there was no fresh evidence, no accidental slip regarding the Scott Schedules, and no enforceable fixed-price contract between the parties.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed a Small Claims Court decision and brought a motion for a true copy of the trial audiotapes, alleging that the transcripts omitted comments showing a reasonable apprehension of bias by the trial judge.

The appellant also sought an extension of time to perfect his appeal.

The Divisional Court dismissed the motion, finding that the appellant failed to show good reason to doubt the accuracy of the transcripts under s. 48(2) of the Evidence Act, and that the alleged omitted comments would not support a finding of bias.

The request for an extension of time was consequently dismissed.

The respondent law firm brought a motion for security for costs of the appellant's appeal under Rule 61.06 of the Rules of Civil Procedure.

The respondent argued the appeal was frivolous and vexatious and that the appellant had unpaid costs awards.

The court found the appeal was not frivolous and vexatious, and noted the respondent had agreed to an indulgence regarding the unpaid costs while the appellant sought an investigation.

The motion for security for costs was dismissed with no order as to costs.

The appellant appealed a Deputy Judge's decision granting default judgment to the plaintiff.

The Divisional Court found that the Deputy Judge misapplied the law by refusing to hear the defendant, who was present and ready to proceed despite lacking an interpreter, and by harshly denying a brief adjournment requested by counsel to allow witnesses to arrive.

The appeal was allowed, the default judgment was set aside, and the appellant was granted leave to file a Defence and Counterclaim.

The self-represented plaintiffs sought leave to appeal a discretionary, administrative decision made by a motion judge in Triage Court.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the decision and no matters of public importance involved.

The court noted the decision did not affect the plaintiffs' substantive rights or infringe any constitutional rights.

The appellant, a Swiss manufacturing company, appealed a Master's order dismissing its motion to stay a breach of contract action on the basis of forum non conveniens.

The Master had found that Ontario had a real and substantial connection to the action and that Switzerland was not clearly a more appropriate forum.

The Divisional Court dismissed the appeal, finding no palpable and overriding error or error in principle in the Master's application of the jurisdiction and forum non conveniens tests.

The appeal of the $44,000 costs award was also dismissed.

The applicant sought judicial review of an Ontario Municipal Board decision dismissing its appeal of two zoning by-laws.

Prior to the hearing, the City of Ottawa passed a new Comprehensive Zoning By-law that repealed and replaced the impugned by-laws, subjecting the lands to the same uses.

The applicant did not appeal the new by-law.

The Divisional Court found the application for judicial review was moot because the original by-laws had been superseded.

Applying the Borowski factors, the court declined to exercise its discretion to hear the moot application, noting there were no collateral consequences, no issues of broad public importance, and limited application to other lands.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's order requiring the insurer to pay the claimant approximately $4,350 for attendant care and housekeeping services.

The insurer argued the arbitrator erred by relying on an excerpt from a medical report and by judging the claimant's credibility solely on her demeanour.

The Divisional Court dismissed the application, finding that the excerpt was properly in evidence as part of a larger report filed by the insurer, and that the arbitrator reasonably weighed credibility in the context of the evidence as a whole.

The standard of review applied was reasonableness.

The applicants sought judicial review of an Ontario Racing Commission (ORC) decision suspending them for one year and imposing fines for 'tubing' horses prior to races.

The applicants argued they were denied natural justice because the ORC relied on general rules rather than a specific prohibition against tubing, and that the panel erred in excluding photographic evidence.

The Divisional Court applied the reasonableness standard, finding ample evidence that tubing was a known prohibited practice in the industry.

Although the panel erred in excluding the photographs, it did not cause a meaningful injustice.

The application was dismissed and the penalties upheld.

The appellant appealed an order that dismissed his claim for reimbursement of child support overpayments.

A previous final judgment had already ordered the respondent to pay the appellant for the overpayments.

The Divisional Court held that the motion judge was functus officio and lacked jurisdiction to reconsider the final judgment.

The appeal was allowed, the subsequent order was set aside, and the respondent was permitted to set off outstanding costs awards against the judgment debt.