Ian V.B. Nordheimer

The appellant law firm appealed the dismissal of its application under s. 23 of the Solicitors Act to enforce written retainer agreements for unpaid legal fees.

The application judge had ruled that the firm could only enforce its retainer via an assessment.

The Divisional Court dismissed the appeal but clarified the law, holding that simple or usual written fee agreements do not fall within the scope of s. 16(1) of the Act.

Consequently, they are not subject to the requirement for assessment under s. 17 or the prohibition against commencing an action under s. 23.

Lawyers may commence an action to recover fees under such agreements, though clients retain the right to request an assessment.

The appellant, Municipal Property Assessment Corporation, appealed a decision of the Assessment Review Board regarding the assessed value of a grocery store property.

The Board had determined the current value of the property as development land but then drastically reduced the assessed value by applying the equitable principle under the Assessment Act, comparing it only to two other grocery stores.

The Divisional Court allowed the appeal, finding that the Board erred in law and rendered an unreasonable decision by failing to consider all points of comparison to determine 'similar lands' and by failing to properly apply the equitable principle.

The matter was remitted to a differently constituted panel of the Board.

The applicant police officer sought judicial review of an Ontario Civilian Police Commission (OCPC) decision that ordered a new discipline hearing.

The OCPC had found that the Hearing Officer breached procedural fairness by failing to provide minimum assistance to the unrepresented public complainant.

The Divisional Court dismissed the application, upholding the OCPC's refusal to admit fresh affidavit evidence about off-the-record events.

The Court also rejected the applicant's argument that the complainant needed to prove actual prejudice, affirming that a breach of procedural fairness carries inherent prejudice and denies a meaningful role in the proceeding.

The applicant brought a motion for procedural relief in his application for judicial review of an Ontario Labour Relations Board decision.

He sought to have his wife represent him or be added as a party, production of his opening submissions to the Board, production of 750 pages of payroll records, and to strike the respondents' facta.

The court dismissed the motion in its entirety, finding no legal basis for spousal representation, noting the Board record was complete, and holding that disagreement with a factum is not grounds to strike it.

Costs of $3,500 were awarded to the respondent employer.

The appellants retained the respondent paralegal firm for statutory accident benefits claims following a motor vehicle accident.

The respondent orally represented that fees would only be paid from settlement proceeds, but the written retainer agreement contained a clause requiring payment of hourly fees if the representation was terminated.

After terminating the relationship, the respondent sued for fees and won in Small Claims Court.

On appeal, the Divisional Court set aside the judgment, holding that a contract induced by an oral misrepresentation inconsistent with the written terms cannot be enforced, especially in the context of legal retainers where the professional bears the burden of explaining any alterations to the payment structure.

The appellant tenant appealed an order of the Landlord and Tenant Board requiring him to pay rent arrears.

The tenant argued the Board erred by failing to explicitly determine the respondent was the landlord and by failing to adjourn the hearing when the tenant did not appear.

The Divisional Court dismissed the appeal, finding the landlord identity issue was never raised before the Board and lacked merit, and the tenant's representative had not requested an adjournment.

The appellant appealed a decision of the Environmental Review Tribunal that confirmed a Renewable Energy Approval for a wind facility project on Amherst Island.

The appellant raised nine issues, including the admission of expert evidence, consideration of mitigation measures outside the approval, factual findings regarding wildlife, and a motion to adduce fresh evidence.

The Divisional Court dismissed the appeal, finding that the Tribunal's evidentiary and procedural decisions were reasonable exercises of its discretion and statutory authority.

The court held it lacked jurisdiction to review the Tribunal's factual findings or admit fresh evidence aimed at challenging those findings, as appeals to the court are strictly limited to questions of law under the Environmental Protection Act.

The applicant sought judicial review of a decision by the Information and Privacy Commissioner denying a fee waiver for a freedom of information request made to the Ministry of the Environment.

The Adjudicator had reduced the fee but found it was not fair and equitable to waive it entirely, noting the applicant did not work with the Ministry to narrow the request.

The Divisional Court applied the reasonableness standard and dismissed the application, finding the Adjudicator's decision fell within a range of acceptable outcomes.

The moving party/appellant brought a motion for an order staying an earlier order of the Associate Chief Justice, which had refused to extend the time to perfect her appeal and quashed the appeal of a Landlord and Tenant Board eviction order.

The appellant had not paid rent for over 15 months.

The court applied the test for a stay, finding no serious issue, no irreparable harm, and that the balance of convenience favoured the new landlord who required the premises for personal use.

The motion was dismissed with costs awarded to the respondent.

The applicant, a police sergeant, brought an application for judicial review of a hearing officer's decision declining to recuse himself for alleged bias during a disciplinary hearing.

The Divisional Court dismissed the application as premature, finding that the applicant had an automatic right of appeal to the Ontario Civilian Police Commission once the penalty phase concluded.

The court reiterated that exceptional circumstances are required to justify early intervention by judicial review when an administrative appeal route exists.

The moving parties, four lien claimants, brought a motion for an extension of time to appeal an order determining that a mortgage had priority over their claims.

The delay in filing was short and caused by counsel's confusion over whether the appeal lay to the Court of Appeal or the Divisional Court.

The court found a bona fide intention to appeal, minimal prejudice to the respondent, and a live issue on the merits.

The motion was granted and the respondent was ordered to pay costs.

The defendant sought leave to appeal a motion judge's decision dismissing its motion to compel the plaintiff to answer certain questions on examination for discovery.

The Divisional Court dismissed the motion, finding no good reason to doubt the correctness of the order, as the motion judge correctly applied principles of relevance and proportionality under Rule 1.04(1.1).

The court also held that the issue of answering discovery questions did not raise a matter of general importance.

The applicant sought judicial review of the respondent's decision denying a certificate of eligibility for the Ontario Digital Media Tax Credit for its interactive digital sweepstakes games.

The respondent had concluded the games were ineligible because their primary purpose was to promote the sale of long-distance phone cards.

The Divisional Court allowed the application, finding the respondent's decision unreasonable.

The court held that the regulatory definition focuses on the characteristics of the game when operated by the user, making the developer's motivation for creating the games an irrelevant consideration.

The applicant sought judicial review of a decision by the discipline panel of the Ontario College of Pharmacists dismissing his application for reinstatement.

The applicant's certificate had been revoked twice previously due to criminal convictions for trafficking narcotics and fraud.

The Divisional Court found that the panel's decision was reasonable, noting that the panel was entitled to weigh the risk to the public and the profession, reject the applicant's evidence as self-serving, and find that expert reports and educational courses were insufficient to allay concerns.

The application for judicial review was dismissed.

The tenant appealed an order of the Landlord and Tenant Board evicting her so the landlord could use the basement unit for storage related to her personal occupation of the rest of the house.

The tenant argued that storage did not constitute 'residential occupation' under s. 48(1) of the Residential Tenancies Act, 2006, and that the Vice-Chair showed bias by initiating a review of a previous order.

The Divisional Court dismissed the appeal, finding the Board's interpretation of 'residential occupation' to be reasonable and concluding there was no reasonable apprehension of bias.

The plaintiff sought leave to appeal from an order that had dismissed a previous motion for leave to appeal.

The Divisional Court held that there is generally no right of appeal from an order refusing leave to appeal, subject to a narrow exception where a judge mistakenly declines jurisdiction.

Finding that jurisdiction was not declined but rather the original motion was decided on its merits, the court concluded it had no jurisdiction to entertain the further motion.

The motion was dismissed as frivolous, vexatious, or an abuse of process under Rule 2.1.01.

The applicants challenged three Part VI authorizations to intercept private communications, arguing a lack of reasonable and probable grounds and investigative necessity.

The court found that the Information to Obtain (ITO) relied almost entirely on unproven tipsters, lacked sufficient detail and corroboration, and contained misleading information regarding applicant travel.

The court also found that investigative necessity was not established as other reasonable investigative methods were not adequately explored.

Consequently, the authorizations were deemed invalid, and the intercepted communications were excluded under s. 24(2) of the Charter.

The applicants, three police officers charged with sexual assault, brought an application for a stay of proceedings under s. 11(b) of the Charter due to delay.

The Crown had obtained a direct indictment, moving the trial to the Superior Court without a preliminary inquiry.

The applicants argued the 18-month presumptive ceiling from Jordan should apply because they were denied a preliminary inquiry.

The court rejected this argument, holding that the 30-month ceiling applies to all cases tried in the Superior Court, regardless of whether a preliminary inquiry actually occurs.

As the anticipated delay was 28 months, falling below the 30-month ceiling, the application for a stay was dismissed.

The applicant, Zekrollah Walizadah, sought an order under s. 745.6 of the Criminal Code to reduce his period of parole ineligibility for first-degree murder.

The pre-screening judge applied the "substantial likelihood" threshold, considering the applicant's character, conduct while serving the sentence, the nature of the offence, victim information, and remorse.

Despite positive conduct in custody, the applicant's continued failure to fully accept responsibility for the planned and deliberate nature of the murder and the extreme violence inflicted was a significant negative factor.

The application was dismissed, as the court was not satisfied there was a substantial likelihood that a jury would unanimously agree to reduce the parole ineligibility period.

The applicants sought a determination of privilege claims over documents seized by the Ontario Provincial Police during a fraud investigation.

The court ruled that draft letters and internal emails prepared for counsel's review were privileged.

Regarding copies of non-privileged documents gathered for a lawyer's brief, the court analyzed conflicting appellate authorities and concluded that such copies are only protected by litigation privilege if their gathering reflects specialized skill and knowledge, and provided the original documents are otherwise produced.