Frances P. Kiteley

The appellant City of Waterloo appealed a trial decision finding that a competing bidder, Xterra, failed to comply with the material terms of a municipal tender.

The trial judge concluded that the requirement to submit a bid including only the base bid was a material term, and that Xterra's failure to follow this instruction constituted non-compliance.

The Divisional Court dismissed the appeal, holding that the trial judge's decision involved a mixed question of fact and law, and rejected the appellant's argument that the standard of review was correctness.

The plaintiff appealed a Master's decision dismissing her motion to amend her statement of claim and add a new party defendant.

The plaintiff originally pleaded and swore in an affidavit for a Certificate of Pending Litigation that she advanced $150,000 as a loan secured by a mortgage.

Five years later, she sought to amend her claim to allege the funds were an equity investment.

The Divisional Court upheld the Master's decision, finding that the proposed amendment was untenable at law and an abuse of process because it fundamentally contradicted the plaintiff's prior sworn evidence upon which she had obtained relief.

The applicants sought judicial review of a decision by the Toronto Animal Services Manager to destroy their dog under the Animals for Research Act.

The Manager determined that the dog was a restricted pit bull under the Dog Owners Liability Act, had attacked another dog and a person, and was a menace.

The Divisional Court held that the standard of review was reasonableness and found the Manager's decision reasonable based on licensing records, veterinary certificates, and the dog's physical characteristics.

The application for judicial review was dismissed.

The applicant, a vice principal, sought judicial review of a decision by the Investigations Committee of the Ontario College of Teachers not to refer his complaint against a principal to the Discipline Committee.

The Divisional Court dismissed the application, finding that the applicant lacked standing.

As a mere complainant under the Ontario College of Teachers Act, he had no special or private interest in the decision beyond that of any member of the public.

Costs were awarded to the respondents on a partial indemnity basis.

Following the dismissal of the defendants' motions for leave to appeal, the plaintiffs sought costs of $8,528.20 on a partial indemnity basis.

The defendants argued the amount was excessive and suggested $2,500.

The court agreed the requested amount was excessive for a relatively uncomplicated matter, but found the defendants' suggestion too modest given counsel's experience and the importance of the motion.

The court fixed costs at $4,000 inclusive of fees, disbursements, and GST, payable within 30 days.

Imperial Oil Limited applied for judicial review of an arbitration board's decision that its random drug testing policy using buccal swabs violated the collective agreement.

The Divisional Court dismissed the application, finding that the arbitration board's interpretation of the collective agreement in light of established arbitral jurisprudence (the 'Canadian model') was not patently unreasonable.

The Court held that the board did not alter the collective agreement, did not rely on unsupported findings of fact, and reasonably interpreted the agreement's requirement to treat employees with respect and dignity without needing to apply the Human Rights Code.

The Ministry of Correctional Services and a journalist (Jane Doe) both brought applications for judicial review of decisions by the Information and Privacy Commissioner (IPC) regarding access to records relating to allegations of abuse by Ministry employees.

The Divisional Court held that the IPC correctly interpreted the employment-related exclusion in s. 65(6) of the Freedom of Information and Protection of Privacy Act, finding it did not apply to records of civil litigation where the Crown is vicariously liable for employee torts.

The Court also upheld the IPC's findings on solicitor-client and litigation privilege under s. 19, and personal privacy under s. 21.

However, the Court found the IPC erred by failing to apply the public interest override in s. 23 to records exempted under s. 19, and referred the matter back to the IPC.

The applicant sought judicial review of three decisions by the Workplace Safety and Insurance Appeals Tribunal denying him temporary total disability benefits for a specific period.

The applicant argued the Tribunal failed to apply Board policies, breached its duty of fairness, made findings contrary to the record, and violated s. 15 of the Charter.

The Divisional Court dismissed the application, finding the Tribunal's decisions were not patently unreasonable, the duty of fairness was met, and the Charter claim could not be raised for the first time on judicial review without an evidentiary record.

Following a successful appeal where the appellant was represented by pro bono counsel, the appellant sought costs on a partial indemnity basis.

The respondent argued that costs should not be awarded as there was no expectation the impecunious appellant would pay costs if unsuccessful.

Applying Court of Appeal precedent, the Divisional Court held that pro bono counsel are entitled to costs awards to promote access to justice and deter abuse of the system.

The court awarded the appellant $3,500 in fees and $1,295.23 in disbursements.

The appellant lived with her grandmother in a Toronto Community Housing Corporation unit for 12 years.

When her grandmother died, the appellant sought to be recognized as a tenant.

The Ontario Rental Housing Tribunal dismissed her application and granted the landlord's eviction application without allowing the appellant to present evidence or make full submissions, finding she was merely an unauthorized occupant.

On appeal, the Divisional Court held that the Tribunal breached the rules of natural justice and procedural fairness by engaging in a 'trial by ambush' and demonstrating bias.

The Tribunal's decisions were set aside and the matters remitted for a new hearing before a differently constituted panel.

Two police officers appealed a decision of the Ontario Civilian Commission on Police Services, which had revoked a Hearing Officer's decision exonerating them of unlawfully exercising authority.

The officers had arrested a disruptive individual in a courtroom during a trial.

The Divisional Court allowed the appeal, finding that the Commission erred by ignoring the Hearing Officer's credibility findings and by incorrectly concluding that a Justice of the Peace's contempt power superseded a police officer's power to arrest for a criminal offence in the courtroom.

The Hearing Officer's decision was restored.

The appellant solicitor appealed an order dismissing a motion to oppose confirmation of an assessment officer's report.

The assessment officer found the parties were bound by a block fee retainer agreement and noted an adjustment was needed for extra days of examination, but failed to actually make that adjustment.

The Divisional Court allowed the appeal, finding the motions judge erred in confirming the assessment officer's report despite this failure.

The report was varied to show nothing due from the solicitor to the client.

No costs were awarded due to the confusing manner in which the solicitor drew the accounts.

The defendants brought a motion for leave to appeal an order substituting two new representative plaintiffs in a proposed class action regarding defective pacemakers.

The original plaintiff, who had a defibrillator, was moved to a consolidated defibrillator action.

The defendants argued the substitution deprived them of a limitation period defence and that the original plaintiff was a mere placeholder.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision that the defendants suffered no non-compensable prejudice and that special circumstances existed.

The plaintiff sought leave to appeal an order discharging a certificate of pending litigation (CPL) regarding a real estate transaction.

The plaintiff argued the motions judge erred in finding the property was not unique, that damages were an adequate remedy, and in relying on a no-registration clause.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's exercise of discretion and concluding that the issues did not transcend the interests of the parties.

The plaintiff sought leave to appeal an order setting aside five ex parte injunctions he had obtained against the defendant regarding the proceeds of a real estate sale.

The motions judge had set aside the orders after finding the plaintiff failed to make full and frank disclosure of material facts, including a $2 million mortgage and other joint ventures, and had admitted to dishonesty in other proceedings.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision or her exercise of discretion in assessing the plaintiff's lack of candour.

The defendants sought leave to appeal an interlocutory order that dismissed their motions to strike summonses to witnesses and a notice of examination.

The underlying motion was to strike the plaintiffs' statement of claim.

The defendants argued the proposed examinations were too broad and amounted to a fishing expedition.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance, as the scope of examination was properly tied to the broad issues raised in the motion to strike.

The plaintiff sought leave to appeal an order setting aside a default judgment against four defendants.

The plaintiff argued there was good reason to doubt the correctness of the decision, alleging the motions judge failed to find an arguable defence, ignored false affidavits, and provided inadequate reasons.

The Divisional Court dismissed the motion, finding the motions judge applied the correct legal principles and provided sufficient reasons for the limited purpose of setting aside a default judgment.

The court also held the issues were specific to the parties and not of general importance to warrant leave to appeal.

The motion was dismissed without costs due to the defendants' lack of diligence.

Following the dismissal of the respondent's motion for leave to appeal, the applicant sought costs of $7,603.25 on a partial indemnity basis.

The respondent argued the amount was excessive and suggested $2,850.

The court disallowed costs for the applicant's own time as he acted as the client, not counsel, but allowed fees for his counsel's preparation and attendance.

Costs were fixed at $3,150 on a partial indemnity basis.

The applicant sought judicial review of the Ontario Human Rights Commission's decisions not to refer his racial discrimination complaint against his employer to the Human Rights Tribunal, and to uphold that decision upon reconsideration.

The applicant argued he was denied procedural fairness during the investigation.

The Divisional Court dismissed the application, finding that the Commission met the requirements of procedural fairness and that its decisions were not patently unreasonable.

Following the dismissal of the applicants' request for judicial review of a decision denying them admission to a master's program, the successful university sought costs on a partial indemnity basis.

The court weighed the factors under Rule 57, noting the complexity of the issues, the unfounded allegations of bias, and the applicants' failure to mitigate.

The court awarded the university partial indemnity costs fixed at $15,000 for fees and $8,665.31 for disbursements, payable equally by the three applicants.

A dissenting judge would have awarded a lower quantum of costs with an extended time to pay.