Frances P. Kiteley

The appellant, a dental hygienist, was injured when a dental light fell from the ceiling while she was attending to a patient.

She sued the occupier for negligence under the Occupiers' Liability Act.

A jury dismissed the claim, finding the defendant had not failed in its duty to keep the premises reasonably safe.

The appellant appealed, arguing the verdict was perverse and ignored evidence that the defendant had no system for maintaining the structural integrity of the lights.

The Divisional Court dismissed the appeal, holding that the jury's verdict was supported by some evidence, including testimony from the dentist and the serviceman who installed and serviced the equipment, and that the plaintiff failed to prove causation.

The interested parties appealed a motions judge's order requiring them and the garnishee, Vale Canada Limited, to produce contracts and assignment documents for an upcoming garnishment hearing.

The plaintiffs had obtained a default judgment against the defendant and sought to garnish amounts owed by Vale, alleging that the defendant had invalidly assigned its contracts to the interested parties to avoid garnishment.

The Divisional Court dismissed the appeal, finding that the motions judge properly exercised his discretion under Rule 60.08(16) of the Rules of Civil Procedure to order production of documents relevant to determining the rights and liabilities of the parties at the garnishment hearing.

The municipality appealed a motion judge's decision to stay its civil action against the defendants pending the completion of related criminal fraud charges against one of the defendants.

The Divisional Court allowed the appeal, finding the motion judge erred in law by holding that section 7 of the Charter eclipsed the established test requiring extraordinary or exceptional circumstances for a stay.

The court reaffirmed that the burden remains on the moving party to prove exceptional circumstances, and set aside the stay.

The landlord appealed a Landlord and Tenant Board decision which found that rent increases for several cottage leases were void because the landlord failed to provide the required 90 days' notice under the Residential Tenancies Act.

The Divisional Court dismissed the appeal, affirming that the leases were subject to the Act and that the tenants were entitled to a rebate for the excess rent paid in the one year prior to their applications.

The plaintiff appealed an order requiring her to produce a letter sent by an accountant to her lawyer, claiming it was protected by solicitor-client privilege.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's determination that the plaintiff had given a clear, unconditional undertaking during discovery to produce the letter.

Furthermore, the court agreed that the communication did not fall within the specific categories where solicitor-client privilege attaches to third-party communications.

The applicant sought judicial review of two Ontario Labour Relations Board decisions dismissing his complaint that his union breached its duty of fair representation under s. 74 of the Labour Relations Act.

The applicant had been terminated for safety infractions and subsequently retired and began drawing his pension without notifying the union, leading the union to withdraw his grievance.

The Divisional Court applied the reasonableness standard of review and found the Board's decision that the union had not acted arbitrarily was within the range of acceptable outcomes.

The application for judicial review was dismissed.

The appellant appealed a License Appeal Tribunal decision denying him income replacement benefits following a motor vehicle accident.

The adjudicator had preferred the medical evidence of the respondent's physiatrist over the appellant's physiatrist, concluding the appellant did not suffer a substantial inability to perform his pre-accident employment tasks.

The Divisional Court dismissed the appeal, finding that the adjudicator applied the correct legal test and that weighing conflicting medical evidence does not constitute an error of law.

The appellants appealed the dismissal of their motions for summary judgment regarding claims of nuisance, trespass, and negligence arising from the application of biosolids on their farm.

The Divisional Court allowed the appeal, finding that the motion judge erred in law by failing to apply the proper summary judgment principles from Hryniak v. Mauldin.

The plaintiffs had failed to provide expert evidence or sufficient factual evidence to establish the elements of their claims, and the motion judge improperly speculated on what evidence might be available at trial.

The action against the appellants was dismissed.

The applicant brought a motion for a stay of an arbitrator's order which held that an arbitration arising from a 1990 motor vehicle accident could not proceed because the applicant had signed a full and final release.

The applicant sought the stay pending an application for judicial review.

The Divisional Court applied the RJR MacDonald test and found that while there was a serious issue to be tried, the applicant failed to establish irreparable harm or that the balance of convenience favoured a stay.

The court noted that the delay was largely attributable to the applicant and that financial compensation would ultimately be available if successful.

The motion for a stay was dismissed.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board consent eviction order.

The tenant had obtained an automatic stay of eviction by filing the appeal, but abandoned the appeal shortly before the motion hearing.

The Divisional Court found the appeal was manifestly devoid of merit and an abuse of process, noting the tenant was 'gaming the system'.

The court quashed the appeal, lifted the stay, ordered immediate vacant possession, and awarded costs to the landlord.

The moving parties sought a stay of execution of an order vacating a certificate of pending litigation (CPL) on one property and a restraining order on another property, pending their motion for leave to appeal.

The court applied the three-part test for a stay.

The court found that the moving parties failed to establish a serious question to be tried that would meet the test for leave to appeal, and failed to demonstrate irreparable harm.

The motions for a stay and a restraining order were dismissed.

The appellant faced criminal charges for sexual assault and was also sued civilly by the complainant.

In the civil action, the appellant obtained discovery evidence, which his civil counsel shared with his criminal counsel to impeach the complainant at the criminal trial.

The motion judge ruled that the appellant needed court leave under rule 30.1(8) to use the evidence for impeachment and that sharing it with criminal counsel breached the deemed undertaking.

The Divisional Court allowed the appeal, holding that rule 30.1(6) permits the use of discovery evidence for impeachment without prior court authorization, and that sharing the evidence with legal advisors does not breach the undertaking.

The appellants appealed a decision of the Social Benefits Tribunal which upheld the Director's finding that the appellant was not financially eligible for ODSP income support due to her receipt of long-term disability insurance benefits.

The Divisional Court dismissed the appeal, finding that the Tribunal's decision involved a question of mixed fact and law, which is not appealable under the ODSPA, and that the Tribunal's conclusion was reasonable.

The applicant sought an extension of time to bring a motion for leave to appeal a temporary order that released $90,000 to each party from the proceeds of the sale of the matrimonial home.

The applicant failed to serve her motion for leave within the required 15 days.

The court applied the test for an extension of time under Rule 3.02 and considered the merits of the proposed appeal under Rule 62.02(4)(b).

The court found that the applicant did not demonstrate a clear intention to appeal within the time limit, the respondent would be prejudiced by further delay, and there was no good reason to doubt the correctness of the temporary order.

The motion for an extension of time was dismissed.

The tenant appealed a Landlord and Tenant Board order terminating her tenancy for rent arrears.

The tenant argued the landlord was estopped from charging market rent due to a letter suggesting she pay a lower rent-geared-to-income amount while they attempted to convert her unit.

The Divisional Court dismissed the appeal, finding the estoppel issue was not raised before the Board, the letter was not a clear and unequivocal promise, and the Board reasonably interpreted its home statute regarding jurisdiction over rent subsidies and service of notices.

The applicant sought to adjourn the scheduled trial date in a complex family law and trust proceeding.

The respondent opposed the adjournment.

The court found that the trial date had to be vacated because the parties were not ready, there had been no meaningful settlement conference, and updated financial statements had not been provided.

The court vacated the trial date and scheduled a case conference to set a new timetable and trial date.

Following a successful appeal by the estate trustee, the court ordered the respondent to pay costs of $9,500.

The respondent subsequently sought clarification on whether the costs were payable to the appellant directly or to the estate, arguing they should be paid from or to the estate.

The Divisional Court rejected the respondent's submissions, applying the modern approach to costs in estate litigation.

The court confirmed that the costs are payable directly to the successful appellant, as the findings appealed from were made against him in his personal capacity and he was denied procedural fairness.

The appellant physician appealed an eight-month suspension imposed by the Discipline Committee for professional misconduct.

The appellant had borrowed substantial sums of money from two patients to fund a failed investment and subsequently made a consumer proposal, resulting in significant financial losses for the patients.

The Divisional Court dismissed the appeal, finding that the Committee reasonably considered specific and general deterrence, the appellant's lack of remorse, and the vulnerability of the patients due to shared ethnicity and language.

The applicant employer sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision granting a worker loss of earning benefits.

The Tribunal found the worker was involuntarily terminated and no suitable modified work was available.

The Divisional Court quashed the decision, finding it unreasonable because the Tribunal ignored uncontradicted evidence that the worker accepted a voluntary severance package while suitable modified work was available.

The court declared the worker was not entitled to benefits beyond his surgery recovery period.

This case involved two motions within a Hague Convention application concerning the wrongful removal of four children from the Netherlands to Canada by the respondent mother.

The applicant father sought the children's return and parenting time, while the respondent sought an order for the Office of the Children's Lawyer (OCL) to investigate.

The court dismissed the respondent's OCL motion, emphasizing the Hague Convention's principle of prompt return and the inappropriateness of using an OCL investigation to delay proceedings or ascertain children's views in this context.

The court found that wrongful removal was established based on a Dutch court order confirming joint parental authority and habitual residence in the Netherlands, and the respondent's misrepresentation of her intent to return.

The applicant's motion for parenting time was granted, establishing a schedule for video calls.

Costs were awarded to the applicant, with payment deferred to the judge hearing the main application.