Frances P. Kiteley

The moving party brought a motion to a panel of the Divisional Court to set aside a previous decision refusing leave to intervene as a friend of the Court in an application for judicial review.

The underlying application involved certificates of approval granted under the Environmental Bill of Rights.

The Court treated the motion as a hearing de novo due to the moving party refining his position.

Finding that the case engaged matters of public concern and that the moving party had special knowledge and expertise regarding the statement of environmental values, the Court granted leave to intervene.

The respondent, Workplace Safety and Insurance Appeals Tribunal, sought costs of $2,000 following a successful application.

The applicant opposed the costs award due to financial circumstances.

The court awarded the requested $2,000, noting it was a fair and reasonable amount given the total bill of costs exceeded $17,000.

The applicants, a pharmacist and his patients, brought a motion for an interim stay of the Executive Officer's decision to terminate the pharmacy's Health Network Subscription Agreement.

The Executive Officer purported to terminate the agreement without cause under the contract, despite statutory provisions governing suspension for cause.

The court found a serious issue to be tried regarding whether the statutory framework displaced the contractual right to terminate.

Finding that the pharmacy would suffer irreparable harm and the balance of convenience favoured the patients' need for uninterrupted service, the court granted the interim stay, holding that the Proceedings Against the Crown Act did not preclude enjoining a Crown servant from exceeding statutory authority.

The appellant defendants appealed an order dismissing their motion to compel the corporate plaintiffs to post security for costs.

The motion judge had dismissed the motion on the basis that the defendants had filed a counterclaim closely related to the main action.

The Divisional Court allowed the appeal, holding that while a counterclaim may be relevant when seeking security for costs against a plaintiff by counterclaim, it does not insulate an initiating plaintiff in the main action from posting security for costs.

The corporate plaintiffs were ordered to post $20,000 in security for costs.

Following a successful appeal to the Divisional Court that revoked a decision of the Ontario Civilian Commission on Police Services, the appellant police officers sought costs against the respondent.

The court applied the principles from Boucher v. Public Accountants Council, fixing costs on a partial indemnity basis at $7,500, inclusive of fees, disbursements, and GST.

The applicant sought judicial review to quash an arbitrator's award that allowed a grievance regarding holiday pay for daycare workers.

The arbitrator had interpreted the collective agreement to conclude that holiday pay was conditional on the employee working the day immediately following the holiday they were required to work, which in this case was after a summer layoff.

Applying the reasonableness standard of review from Dunsmuir, the Divisional Court found the arbitrator's subjective interpretation of the collective agreement was within a range of reasonable outcomes.

The application for judicial review was dismissed.

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.