Helen M. Pierce

The defendants brought a motion to extend the time to file a notice of appeal from a judgment in a construction lien case.

The defendants' Manitoba counsel missed the 15-day appeal period prescribed by the Construction Lien Act, mistakenly believing they had 30 days from the entry of the formal order.

The court granted the extension, finding that the defendants had formed an intention to appeal within the relevant period, the delay was reasonably explained by counsel's error, and the plaintiff would not suffer prejudice that could not be compensated by costs and interest.

The appellant moved for substantial indemnity costs and an order prohibiting the respondent from filing responding material after the respondent's cheques for costs, payable as a condition of an adjournment, were returned for insufficient funds.

The respondent's counsel had promptly replaced the cheques with a firm trust cheque once notified.

The court awarded $200 in costs for the inconvenience of the dishonoured cheques but dismissed the request to prohibit responding materials as premature.

The court noted the escalation of costs was due to a lack of professional courtesy and communication between counsel.

The respondent was awarded costs of the appeal fixed at $8,000 all-inclusive.

The court substantially reduced the quantum claimed because both parties failed to address the narrow single issue upon which the appeal was ultimately disposed, which was raised by the panel after the hearing.

A minor deduction was also made for potentially unrecoverable travel disbursements.

The applicant sought an order of mandamus requiring the municipal council to hold a meeting pursuant to section 357(5) of the Municipal Act to hear representations regarding a significant tax overcharge caused by a clerical error.

The municipality had refused the request, asserting it lacked authority and that statutory deadlines had passed.

The Divisional Court found that the municipality erred in law by declining its jurisdiction and that the application was made within the statutory timeframe.

The court granted the application and issued an order of mandamus compelling the council to hold the requested meeting and make a decision.

The appellants sued their former solicitor for negligence after discovering a merged title issue under the Planning Act prior to closing a real estate transaction.

The solicitor offered to correct the issue at his own expense via a nunc pro tunc application, but the appellants' new lawyer secretly pursued a parallel severance application and sought to recover those costs.

The trial judge found the solicitor negligent but held the costs of the parallel application were not reasonably foreseeable.

The trial judge also awarded costs against the appellants for failing to accept settlement offers that exceeded their trial recovery.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's foreseeability analysis or costs award.

The applicant applied for judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of mediation and settlement materials.

The materials had been prepared for the mediation of ongoing litigation between the applicant and the respondent.

The Divisional Court granted the application, holding that the records were exempt from disclosure under both the common-law settlement privilege and section 19 of the Freedom of Information and Protection of Privacy Act.

The court emphasized that the public interest in encouraging settlement trumps the public interest in transparency of government action in these circumstances.

The applicant, a taxi driver who was the victim of a serious knife attack, appealed a decision of the Criminal Injuries Compensation Board.

The Board had awarded him $20,000 for pain and suffering, despite his request for $90,000 to $150,000, because the governing legislation restricts lump sum awards to a maximum of $25,000.

The Divisional Court dismissed the appeal, finding no error of law and no failure by the Board to exercise its discretion appropriately.

The appellant, a taxi driver who was the victim of a serious knife attack, appealed a decision of the Criminal Injuries Compensation Board awarding him $20,000 for pain and suffering.

He had sought between $90,000 and $150,000, but the governing statute restricts the Board to a maximum lump sum award of $25,000.

The Divisional Court dismissed the appeal, finding no error of law and that the Board exercised its discretion appropriately.

The applicant union sought judicial review of an arbitration award that denied its grievance regarding the interpretation of a contracting out provision in a collective agreement.

The union argued the arbitrator failed to answer all questions or provide sufficient reasons.

The Divisional Court dismissed the application, finding the arbitrator's decision was reasonable, consistent with his findings of fact, and sufficiently complete to allow for proper analysis.

The appellant appealed an interim order for spousal and child support, arguing the motions judge erred by including $100,000 from a share redemption as income available for support.

The Divisional Court dismissed the appeal, finding the motions judge correctly applied the Child Support Guidelines to attribute corporate income to a sole shareholder.

The court also admitted fresh evidence that confirmed the availability of the funds, noting any necessary adjustments could be made at the upcoming trial.

The appellant, a former member of the Investment Dealers Association (IDA), challenged the IDA's jurisdiction to discipline him after he ceased to be a member.

The IDA's by-laws permitted discipline of former members for up to five years, and the Ontario Securities Commission upheld this jurisdiction.

On appeal, the Divisional Court applied a reasonableness standard of review and found that the Securities Act only authorizes the regulation of current members.

The court concluded that the IDA's by-law contravened the Act and that the IDA lacked jurisdiction to discipline former members.

The appeal was allowed.

The appellants were unsuccessful in their appeal of a decision refusing to certify their class action.

The respondents sought costs on a partial indemnity basis.

The Divisional Court adopted the approach of the motion judge, who had awarded approximately 15% of the amounts claimed by the respondents, reflecting the principle that costs against unsuccessful plaintiffs in certification motions are typically modest to promote access to justice.

Costs were fixed at $6,600 for the TTC, $1,600 for Pinchin Environmental, and $400 for the Crown.

The appellants appealed a decision refusing to certify their action as a class proceeding.

The proposed class action concerned alleged asbestos exposure at a subway station during demolition activities.

The Divisional Court dismissed the appeal, finding no error in the motion judge's decisions to strike the amended statement of claim, conclude that a class action was not the preferable procedure due to overwhelming individual issues, and find the proposed representative plaintiffs unsuitable due to egregious delay and concerns regarding counsel's competency.

The appellants appealed a decision of the class proceedings judge who struck out their Amended Amended Statement of Claim.

The judge had put the appellants to an election to either abandon the proposed amendment or proceed with it after submissions on costs thrown away, pursuant to section 12 of the Class Proceedings Act.

The Divisional Court dismissed the appeal, finding that the judge made no error in her analysis and application of section 12 to ensure the fair and expeditious determination of the proceeding.

The appellants appealed a motions judge's refusal to set aside a default judgment.

The motions judge found that the appellants failed to move as soon as possible and gave no reasonable explanation for the delay.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's exercise of discretion.

The court also declined to interfere with the judgment based on an accounting argument over a $5,000 sum and noted it had no jurisdiction over post-judgment arguments regarding amounts owing.

The tenant appealed an eviction order, arguing the Tribunal erred by failing to consider his drug addiction as a disability requiring accommodation under the Ontario Human Rights Code.

The Divisional Court found that while the addiction was a disability, the tenant's operation of a crack house substantially interfered with other tenants' rights.

The court held that accommodating such behaviour would cause undue hardship to the landlord and other tenants, particularly since the tenant denied dealing drugs, making accommodation impossible.

The appeal was dismissed and the eviction order upheld.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision regarding the discharge of an employee.

The Board had found that the employee's sale of used parts and retention of the proceeds was based on a misunderstanding of workplace practice, rather than willful misconduct.

The Divisional Court dismissed the application, holding that the Board's conclusions were supported by the evidence before it.

The Municipal Property Assessment Corporation appealed a declaration that a non-profit apartment complex for recovering substance abusers was exempt from municipal taxation as a 'house of refuge' under s. 3(1)-11 of the Assessment Act.

The Divisional Court dismissed the appeal, finding that the application judge made no palpable and overriding error in concluding that the facility's primary purpose was to provide a protected environment and sanctuary from the peril of recidivism into addiction, thus qualifying for the exemption.

The appellant appealed a trial judgment regarding a breach of contract for machining steel pieces.

The appellant argued the trial judge erred in failing to award damages for a scrapped forging and in apportioning liability for extra honing based on the contract price between the parties rather than the reduced price negotiated with the customer.

The Divisional Court dismissed the first ground, finding no palpable and overriding error in the trial judge's conclusion that the damages evidence was insufficient.

However, the court allowed the appeal in part on the second ground, holding that the trial judge misapplied the law by not basing the apportionment on the appellant's loss of profits from its customer.

The respondent's cross-appeal on factual findings and costs was dismissed.

The appellant insured was receiving disability benefits following an automobile accident.

The respondent insurer suspended benefits after the appellant refused to attend an addiction treatment program recommended by an addiction expert who examined him under the insurance contract.

The appellant brought an application for a declaration that benefits could not be terminated, and the insurer successfully moved for an order for another medical examination by the same expert under s. 105 of the Courts of Justice Act and Rule 33.

The Divisional Court dismissed the insured's appeal, holding that a medical examination conducted pursuant to an insurance contract prior to litigation does not pre-empt a defendant's prima facie right to a first medical examination under the rules of civil procedure.