Herman J. Wilton-Siegel

The tenant appealed a Landlord and Tenant Board decision refusing to set aside an eviction order.

The tenant argued the Board failed to properly apply s. 27 of the Residential Tenancies Act regarding the reasonableness of the landlord's entry, and failed to consider the landlord's duty to accommodate his disability under the Human Rights Code.

The Divisional Court dismissed the appeal, finding no error of law.

The Board correctly determined the entry was lawful, and there was no evidence connecting the tenant's medical condition to his repeated refusals to allow entry, precluding any finding on accommodation.

The applicant land surveyor sought a stay of a discipline panel decision revoking his licence and a stay of the publication of the decision pending his appeal.

Applying the three-part test for a stay, the court found a serious issue to be tried regarding the proportionality of the penalty, and that the balance of convenience favoured staying the licence revocation to prevent irreparable harm to his practice.

However, the court declined to stay the publication of the decision, noting the open court principle and the fact that the applicant had already disclosed the decision to third parties.

The applicant union sought judicial review of a labour arbitration award that upheld the termination of a registered nurse for stealing narcotics from the respondent hospital.

The nurse suffered from a drug addiction.

The Divisional Court found that the arbitrator's decision was unreasonable because he failed to properly consider whether the hospital engaged in indirect discrimination by terminating the nurse rather than accommodating her disability.

The arbitrator improperly equated the nurse's guilty plea to criminal theft with voluntary behaviour in the human rights context, applying a higher standard of causation than required.

The court set aside the arbitration award and remitted the matter back to the arbitrator to determine the issue of indirect discrimination.

This costs endorsement followed multiple motions concerning the administration of the Estate of Peter Trezzi.

The court applied the modern approach to costs in estate litigation, considering public policy factors and the general civil litigation costs regime.

Costs were determined for four main matters: ownership of 18 Boyle Drive, extension of the applicant's Family Law Act rights, corporate assets, and share ownership of Across Canada Construction Ltd. The court also addressed costs for an adjournment motion, production orders, and consent orders.

The decision allocated costs between parties and the Estate, often finding that the Estate should bear costs due to issues arising from the deceased's actions or ambiguities in the will.

This costs endorsement follows an application where the applicant successfully challenged the deceased's will due to lack of testamentary capacity but failed on a claim of undue influence against one of the respondents.

The court determined that success was divided, with approximately two-thirds of the litigation pertaining to testamentary capacity and one-third to undue influence.

The applicant was awarded $30,000 from the Estate for her successful claim, while the respondents were awarded $34,750 from the Estate for their successful defense of the undue influence claim.

The court also considered the respondents' conduct, noting undue delays and the introduction of extensive, low-probative medical records.

The appellants appealed an order granting the respondent leave to commence a derivative action on behalf of a closely held corporation.

The appellants argued that one of the claims for alleged overpayment of management fees was statute-barred and that the application judge erred in finding the action was in the best interests of the corporation.

The Divisional Court dismissed the appeal, finding that there was an arguable case that the claim was not statute-barred and that the application judge's discretionary decision to grant leave was reasonable and entitled to deference, particularly given the overlapping oppression action.

The Local Planning Appeal Tribunal (LPAT) brought a stated case to the Divisional Court asking whether parties to a first-level appeal under s. 38(1) of the Local Planning Appeal Act, 2017 have the right to cross-examine witnesses.

The majority of the Divisional Court held that the term 'examine' in s. 42(3)(b) of the Act and s. 3 of O. Reg. 102/18 includes cross-examination.

Therefore, parties are precluded from cross-examining witnesses at an oral hearing or cross-examining affiants prior to a hearing.

The Court found that the legislature intended to create an expeditious, investigative process where the Tribunal controls the evidence, expressly overriding the common law right to cross-examination.

The appellant brought two motions: one to set aside a costs order made by a single judge on an abandoned motion for leave to appeal, and another for leave to appeal a reconsideration decision of the Local Planning Appeal Tribunal.

The Divisional Court dismissed both motions.

The court found no error in the costs order, noting the appellant could have simply requested reasons under the Statutory Powers Procedure Act instead of bringing a motion.

The court also denied leave to appeal the tribunal's decision, agreeing that the appellant lacked standing under s. 34(19) of the Planning Act because he did not make oral or written submissions at the statutory public meeting.

The City of Hamilton sought judicial review of a decision by the Mining and Lands Commissioner dismissing its appeal of a conservation authority levy apportioned by the Niagara Peninsula Conservation Authority.

Hamilton argued that the levy should only be calculated using the assessed value of lands within the conservation authority's jurisdiction, rather than the entire municipality's assessment base.

The Divisional Court applied a reasonableness standard of review and upheld the Commissioner's interpretation of the Conservation Authorities Act and Regulation 670, finding that the entire assessment base of the municipality is to be used in the calculation.

The application for judicial review was dismissed.

The appellant appealed an Ontario Municipal Board decision regarding interest and costs awarded following the expropriation of its lands by the respondent City.

The Board had calculated statutory interest based on the appellant's net interest in the lands after deducting an outstanding mortgage, and awarded costs against the appellant from the date of a Rule 49 settlement offer that exceeded the final compensation award.

The Divisional Court found the Board's interpretation of the Expropriations Act regarding both the interest calculation and the costs award to be reasonable, dismissing the appeal.

The tenant appealed a Landlord and Tenant Board order terminating her tenancy and evicting her for unreasonably refusing the landlord entry to her unit.

The tenant argued the Board Member was biased, failed to provide adequate reasons, and made unreasonable findings of fact, particularly regarding allegations of racism against the landlord's superintendent.

The Divisional Court dismissed the appeal, finding no reasonable apprehension of bias, that the reasons were adequate, and that the Member's factual findings were supported by the evidence.

The appellant architect appealed a decision of the Discipline Committee finding him guilty of professional misconduct for failing to notify a prior architect on three projects and for providing architectural services through an unlicensed entity.

The Divisional Court upheld the findings regarding the failure to notify, concluding the Committee reasonably interpreted the regulation.

However, the Court set aside the finding regarding unlicensed practice, holding the Committee failed to determine whether the drawings at issue constituted a 'design' under the Architects Act.

The matter was remitted to the Committee on that issue.

The appellant nurse appealed a Discipline Committee decision finding her guilty of professional misconduct for failing to comply with an order to complete a remediation program.

She argued she was denied natural justice because she could not challenge the underlying allegations.

The College cross-appealed, arguing the conduct should have been found 'dishonourable' and a longer suspension imposed.

The Divisional Court dismissed both the appeal and cross-appeal, holding that the appellant could not collaterally attack the underlying order, and that the Discipline Committee's findings on misconduct and the two-month suspension were reasonable.

The appellant, who had de facto custody of the child, appealed a summary judgment finding that the child was in need of protection and an order denying her access.

The child had complex medical needs, and the medical evidence indicated the appellant was providing inadequate care, leading to the child's declining health.

The Divisional Court found no palpable and overriding error in the motion judge's reliance on the medical evidence, the finding that the child was in need of protection, or the determination that it was in the child's best interests to deny the appellant access.

The appeal was dismissed.

The tenant appealed an eviction order made by the Landlord and Tenant Board, arguing a reasonable apprehension of bias.

The Board Member who ordered the eviction had previously acted as legal counsel against the tenant on behalf of the building's former property manager in prior eviction proceedings.

The Divisional Court found that an objective observer could reasonably assume the Member's prior knowledge of the tenant's history with the landlord might unconsciously influence her decision, particularly when making credibility findings and exercising discretion under section 83 of the Residential Tenancies Act.

The appeal was allowed and the matter remitted for a hearing de novo.

The applicant sought judicial review of a decision by the Registrar of the Alcohol and Gaming Commission refusing to revoke a Direction to Exclude her from all Ontario gaming sites.

The exclusion was originally imposed due to findings that the applicant was involved in loan sharking at criminal rates of interest.

The Divisional Court dismissed the application, finding the Registrar's decision reasonable given the gravity of the past conduct and the applicant's failure to demonstrate she appreciated the gravity of her actions or that there was no risk of reoccurrence.

The applicant union sought judicial review of an Ontario Labour Relations Board decision that allowed an employee to participate in a representation vote on a displacement application.

The applicant argued the employee should have been excluded under the April Waterproofing doctrine because he was not assigned to work by the incumbent union.

The Divisional Court dismissed the application, finding the Board reasonably interpreted 'in the bargaining unit' based on the work being done and reasonably applied its current, more nuanced approach to the April Waterproofing doctrine.

Air Canada appealed a Small Claims Court judgment awarding damages to four family members for lost luggage on an international flight.

Air Canada argued that under the Montreal Convention, only the passenger whose name appeared on the baggage tags could claim damages.

The Divisional Court dismissed this argument, holding that any passenger who can establish they checked a bag containing their belongings is entitled to claim up to the Convention's liability limit, regardless of the name on the tag.

However, the court allowed the appeal in part to reduce the total damages to $6,800, matching the amount originally claimed by the respondents on their baggage declaration form.

Domfoam International Inc., an applicant in CCAA proceedings, sought leave under Rule 39.02(2) of the Rules of Civil Procedure to examine the president (Terry Pomerantz) and an employee (John Howard) of Domfoam Inc. (the Purchaser) as witnesses in relation to the Purchaser's motion to set aside a distribution order.

The core dispute concerned whether proceeds from an anti-trust class action (Dow Proceeds) were conveyed to the Purchaser in a prior transaction.

The court applied a four-part test for granting leave, finding that the examination of Pomerantz was relevant and responsive to matters raised during cross-examination of the Purchaser's lawyer, and that Domfoam provided a reasonable explanation for the delay.

However, leave to examine Howard was denied as the relevant issues concerning him were known prior to the initial cross-examination, and proportionality weighed against it.

The tenant appealed a Landlord and Tenant Board order terminating her tenancy for substantially interfering with the landlord's lawful rights and interests.

The Board had found that the tenant's aggressive litigation conduct and obstruction of pest control inspections constituted substantial interference with the landlord's maintenance obligations under the Residential Tenancies Act.

The Divisional Court allowed the appeal and set aside the eviction order, finding the Board's decision unreasonable as there was no evidence of ongoing pest infestation or future obstruction, and the Board failed to analyze whether the litigation conduct met the threshold of 'substantial' interference.