Hugh R. McLean

The appellant appealed a License Appeal Tribunal decision revoking his registration as a gaming supplier under the Gaming Control Act, 1992.

The revocation followed the discovery of counterfeit DVDs and unmarked cigarettes at his convenience store, and his subsequent disregard for an immediate suspension order.

The Divisional Court dismissed the appeal, finding that the tribunal's reasons were adequate and that the penalty of revocation was reasonable given the appellant's pattern of dishonesty and lack of respect for the law.

This decision addresses a costs award and ancillary matters following a jury verdict in a personal injury action.

The jury found the defendants 62% liable, awarding substantial damages for pain and suffering, future care costs, and family law damages.

The court ruled on four key issues: ordering an assignment of accident benefits, limiting the McEwens' personal liability to insurance policy limits due to their bankruptcy, applying a 5% pre-judgment interest rate for non-pecuniary damages (finding the relevant statutory amendment not retrospective), and applying the new statutory deductible of $18,270.00 to the Family Law claim.

Despite the jury verdict exceeding some settlement offers, the court significantly reduced the plaintiffs' requested costs from $795,616.09 to $375,000, citing the plaintiffs' conduct, including late expert reports, changing their position on calling the plaintiff, and engaging in "sharp practice" by attempting to enforce a settlement offer while simultaneously initiating a bad faith claim against an insurer.

On a motion in a retail sales tax appeal, the moving party sought to restrict the responding party to arguing only the issue expressly raised in its Notice of Objection, namely whether premiums paid under a health and welfare plan attracted retail sales tax.

The responding party argued the court could permit amendments and should allow a fuller factual record, including matters such as due diligence and penalty, to properly frame the appeal.

The court held that fairness required a complete factual record so that any necessary determinations could be made in the interests of justice.

The motion to restrict the grounds of appeal was dismissed, with costs reserved to the hearing judge.

The Crown applied to have the offender declared a dangerous offender following his conviction for sexual assault of a minor.

The offender had a lengthy history of sexual and violent offences and was diagnosed with paraphilia and intellectual disability.

The court found that the offender met the criteria for a dangerous offender and concluded there was no reasonable expectation that a lesser measure, such as a determinate sentence with long-term supervision, would adequately protect the public.

The offender was sentenced to an indeterminate period of detention in a penitentiary.

Corporate plaintiffs operating heating and air conditioning businesses alleged defamation arising from online reliability ratings published by a consumer organization.

The plaintiffs argued that letter grades assigned under a revised rating system and references to unresolved complaints damaged their business reputations.

The court held that the ratings and accompanying explanations, when read in context of the website’s disclaimers and methodology, would not lower the plaintiffs in the estimation of a reasonable member of the public and therefore were not defamatory.

In any event, the publications would have been protected by qualified privilege and the defence of fair comment.

No malice was established and the action was dismissed.

The defendants brought a motion to compel the plaintiff to attend a further independent psychiatric examination.

The plaintiff had previously attended an examination, but due to an administrative error, was examined by the wrong doctor (the intended doctor's brother).

The plaintiff opposed the motion, arguing that a further examination was unnecessary and would cause him prejudice due to a real risk of harm, as he had a history of suicidal ideation and hospitalizations following previous assessments.

The court found that the further examination was necessary and fair, as the defendants had a right to an expert opinion from a specialist of their choice.

The court ordered the examination to proceed in Ottawa, with the condition that the plaintiff's treating psychiatrist be available immediately afterward to mitigate any risk of harm.

The moving party insurer sought summary judgment dismissing a claim by another insurer seeking indemnity for statutory accident benefits paid to an insured injured in two separate motor vehicle accidents.

The responding insurer alleged that the moving party remained responsible for benefits arising from the earlier accident and should contribute to benefits paid following the second accident.

The motion raised issues concerning the interpretation of the Insurance Act, the Statutory Accident Benefits Schedule, the Disputes Between Insurers regulation, and limitation periods.

The court held that the evidentiary record was insufficient to determine causation between the accidents, the applicability of statutory limitation periods, and whether an equitable cause of action for indemnity existed.

Given the novel legal issues and gaps in the evidentiary record, summary judgment was inappropriate and the matter should proceed to trial.

The plaintiff insurer made payments to its insured for property damage and to a third party for bodily injuries following a motorcycle collision.

The insurer then sued its insured to recover both payments, alleging a breach of the insurance policy.

The insured brought a motion to strike the claim regarding the third-party payment.

The court granted the motion, finding that under the Insurance Act, an insurer cannot sue its insured for reimbursement of a third-party settlement without a prior judgment against the insured, an express reimbursement agreement, or an assignment of the third party's cause of action.

The plaintiff alleged misuse of a joint bank account by his spouse and conversion of a workplace insurance care payment issued in his name.

The court rejected the claim relating to the spouses’ joint bank account, finding the account was managed consistently with the parties’ longstanding intention that the spouse handle household finances.

However, the court found that the spouse and her parents wrongfully converted a WSIB cheque issued to the plaintiff by concealing the payment and depositing it into an account in the mother’s name.

The defendants’ claim that the funds represented compensation for caregiving services failed due to lack of contractual consideration and the equitable doctrine of clean hands.

Judgment was granted for the amount of the cheque plus modest punitive damages.

The appellant appealed a motion judge's decision confirming the final report of a Master.

The Divisional Court found a technical arithmetical error in the calculations, specifically double-counting of a $6,868.21 payment.

The appeal was allowed, and the amount owed in the Master's report was reduced accordingly.

No costs were awarded as the success was based on an arithmetical error.

The appellant, a self-represented litigant, appealed the confirmation of an Assessment Officer's report assessing her former solicitor's bill for services.

The appellant argued the solicitor failed to protect her interests and violated procedural requirements of the Construction Lien Act.

The Divisional Court dismissed the appeal, finding the appellant misunderstood the difference between mandatory and permissive procedures under the Act and the Rules of Civil Procedure.

The court upheld the Assessment Officer's factual findings and awarded substantial indemnity costs to the respondent.

The applicant employer sought judicial review of a decision by the Ontario Labour Relations Board, which declined to use its reconsideration powers under s. 114 of the Labour Relations Act, 1995 to consolidate 11 bargaining units into two.

The Divisional Court applied the functional and pragmatic approach, determining the standard of review to be patent unreasonableness due to the presence of a strong privative clause and the Board's specialized expertise.

The Court found that the Board's decision to leave the restructuring of bargaining units to the parties once a collective agreement is in place was rational and consistent with long-standing jurisprudence.

The application for judicial review was dismissed.

The appellant appealed a decision of the License Appeal Tribunal confirming the Registrar's proposal to revoke his registration as a motor vehicle dealer.

The Divisional Court found that the Tribunal erred in law by applying a test of whether the Registrar was in error, rather than conducting a de novo hearing and making an independent determination as required by section 7(4) of the Motor Vehicle Dealers Act.

Applying a correctness standard of review, the court allowed the appeal, quashed the decision, and remitted the matter for a rehearing before a differently constituted panel.

The tenants appealed a review order of the Ontario Rental Housing Tribunal that awarded rent arrears to the landlord subject to an abatement for heating costs and repairs.

The tenants raised several grounds of appeal, including allegations of bias, lack of full disclosure, unfair hearing due to the landlord's agent testifying, and failure to consider s. 84 of the Tenant Protection Act.

The Divisional Court dismissed the appeal, finding no evidence of bias or lack of disclosure, and noting that the agent only testified on undisputed matters.

The court also found that s. 84 was implicitly considered, as the tenants had impeded the landlord's efforts to make repairs.

The parents, who are Jehovah's Witnesses, sought leave to appeal an interlocutory order granting temporary care and custody of their premature child to the children's aid society.

The order was made to facilitate an emergency blood transfusion which the parents had refused on religious grounds.

The parents argued they were denied procedural fairness and their Charter rights were violated due to short notice and lack of counsel at the emergency teleconference hearing.

The Divisional Court denied leave to appeal, finding that the parents received a fair hearing attenuated to the urgent medical circumstances, and that the issues were highly fact-specific rather than of general public importance.

The City of Ottawa appealed a decision of the Ontario Rental Housing Tribunal that found it to be a 'landlord' under the Tenant Protection Act after it reinstated a rent supplement for a tenant facing eviction.

The Divisional Court found that the underlying dispute between the tenant and the property owner had been resolved, as the tenant had vacated the premises and no arrears were owed.

Applying the Borowski test, the court concluded the appeal was moot and declined to exercise its discretion to hear it, noting that the issue of whether the City is a landlord is best left to the legislature.

The appellant appealed an order refusing to set aside a final child support variation order made after he moved to British Columbia.

The Divisional Court allowed the appeal and extended the time to appeal the original variation order.

The majority held that under sections 17(1) and 18(2) of the Divorce Act, a final order cannot be made against an out-of-province respondent unless they attorn to the jurisdiction or consent; otherwise, only a provisional order can be made.

The matter was remitted for a rehearing.

The appellant university landlord appealed a decision of the Ontario Rental Housing Tribunal which found that the university's 'no pet rule' and refusal to renew a tenancy agreement substantially interfered with the tenants' reasonable enjoyment.

The tenants, who kept cats in their student housing unit, had signed an agreement to terminate the tenancy at the time of entering the lease.

The Divisional Court allowed the appeal, holding that while the 'no pet' provision was void under the Tenant Protection Act, the university was exempt from the prohibition against agreements to terminate signed at the inception of a tenancy due to the student housing exemption in O. Reg. 194/98.

Consequently, the university was entitled to rely on the agreement to refuse a new tenancy at the end of the term.

The applicants, inmates awaiting trial at the Ottawa-Carleton Detention Centre, brought an application for judicial review challenging the implementation of a new telephone system that imposed an automatic twenty-minute time limit on outgoing calls.

They argued this restriction violated their freedom of expression under section 2(b) of the Charter and section 5 of the Ministry of Correctional Services Act.

The majority of the Divisional Court dismissed the application, finding no statutory or Charter breach, and held that any such breach would be saved by section 1 of the Charter.

A dissenting judge would have allowed the application for pre-trial inmates, emphasizing the presumption of innocence.