James D. Carnwath

Following a successful appeal regarding the interpretation of 'fee simple, if unencumbered' for property assessment purposes, the appellants (Municipal Property Assessment Corporation and the City of Toronto) sought costs on a partial indemnity basis.

The respondents argued the claimed fees were excessive and that the appellants should have coordinated their submissions.

The court found the issues complex, the amounts at stake substantial, and no unnecessary overlap in arguments.

Applying Rule 57.01(1) of the Rules of Civil Procedure, the court fixed costs at $70,500 for fees and counsel fees for each appellant, plus their respective disbursements.

The respondent parents sought costs on a full indemnity basis against the children's aid society following an appeal.

The court applied the Family Law Rules, noting that the presumption of costs to the successful party does not apply in child protection cases involving a government agency.

The court found that the society did not act unfairly or unreasonably in pursuing the appeal, as it acted out of concern for the child's best interests and was supported by the Office of the Children's Lawyer.

Consequently, no costs were awarded.

The applicant union sought judicial review of an arbitration award that dismissed its grievance regarding the assignment of teaching duties to principals and vice-principals.

The school board's assignment of these duties resulted in partial redundancies for some bargaining unit teachers.

The Divisional Court dismissed the application, finding the arbitrator's decision reasonable.

The court held that section 287.1(1) of the Education Act unambiguously permits a school board to assign teaching duties to principals and vice-principals, and that such assignments did not constitute a declaration of redundancy under O. Reg. 90/98.

The plaintiffs in a proposed class proceeding against the manufacturer of the drug Vioxx sought to have a former federal Minister of Health represent them on a certification motion.

The defendant successfully moved to disqualify the lawyer under rule 6.05(5) of the Rules of Professional Conduct, which prohibits a lawyer who has left public office from acting in a matter for which they had substantial responsibility.

The plaintiffs appealed.

The Divisional Court dismissed the appeal, finding the motion judge reasonably concluded that the lawyer's former responsibility for Health Canada during the drug's approval created potential private and public conflicts of interest.

The Society appealed a trial judge's order returning a seven-year-old child to her mother's care under supervision.

The Society argued the trial judge made palpable and overriding errors in fact-finding and failed to properly weigh the child's best interests.

The Divisional Court dismissed the appeal regarding the child's placement, finding no palpable and overriding errors and noting that fresh evidence of the mother's recent alcohol use was insufficient to alter the result.

However, the Court allowed the appeal in part to quash a term requiring the Society to assign an American Sign Language-familiar worker, as counsel had not been given an opportunity to make submissions on that issue.

The appellant children's aid society appealed an order of the lower court in a child protection proceeding.

The Divisional Court allowed the appeal in part, quashing the paragraph of the order that required the society to assign a family worker familiar with American sign language.

The remainder of the lower court's order was confirmed, and the parties were encouraged to prepare a re-integration plan for the child prior to the resumption of school.

The appellant appealed a Tribunal decision imposing conditions on his real estate broker registration.

The respondent cross-appealed the Tribunal's finding that the appellant would conduct his business with honesty and integrity.

The Divisional Court dismissed both the appeal and cross-appeal, finding that the Tribunal had jurisdiction under s. 14(5) of the Real Estate and Business Brokers Act, 2002 to impose conditions to protect the public.

The Court also found the Tribunal's conclusion regarding the appellant's past conduct and future integrity was reasonable.

The Municipal Property Assessment Corporation and the City of Toronto appealed an interim decision of the Assessment Review Board regarding the property tax assessments of several large office complexes.

The Board had accepted the property owners' argument that the properties should be valued as if vacant, treating all leases as encumbrances under the definition of 'current value' and 'fee simple, if unencumbered' in the Assessment Act.

The Divisional Court allowed the appeal, holding that the Board's interpretation was incorrect in law.

The Court found that a leasehold interest is an interest in land for assessment purposes, and the whole of the land must be assessed by valuing the totality of interests, including the value of leases in place, rather than just the owner's interest.

The appellants appealed a decision of the Assessment Review Board regarding the property tax assessments of six large office complexes.

The Board had accepted the respondents' argument that the statutory definition of 'current value' as 'fee simple, if unencumbered' required the properties to be valued as if vacant, ignoring existing leases.

The Divisional Court allowed the appeal, holding that the Board's interpretation was wrong in law.

The Court found that the entire ownership interest, including both the landlord's and tenants' interests, must be valued, and that the 1997 amendment to the Assessment Act was intended to ensure consistency in valuation by requiring the use of market rents rather than actual rents.

The Municipal Property Assessment Corporation and the City of Toronto appealed a decision of the Assessment Review Board regarding the property tax assessments of six large office complexes in Toronto.

The Board had accepted the property owners' argument that the statutory phrase 'fee simple, if unencumbered' required the properties to be valued as if they were vacant, ignoring existing leases.

The Divisional Court allowed the appeal, finding that the Board's interpretation was wrong in law.

The Court held that the whole of the land must be assessed, and in the context of income-producing properties, 'fee simple, if unencumbered' means value calculated using market rents rather than actual rents, ensuring all interests in the land are valued.

The appellant hospital appealed a partial summary judgment awarding the respondent architectural firm over $1 million in a construction lien action.

The motion judge had relied on an 'admission' letter sent by the hospital following a pre-trial conference.

The Divisional Court allowed the appeal and set aside the summary judgment, finding that the motion judge erred by relying on the pre-trial communication contrary to Rule 50.03 of the Rules of Civil Procedure.

The Court also found that affidavit evidence from a peer-review architect raised a genuine issue for trial regarding the completion of the contract and the validity of the invoices.

The appellants appealed an order dismissing their motion to exclude the medical report and evidence of a defence expert, Dr. Bednar, prior to trial.

The motions judge had declined to rule on the admissibility, holding that such a determination should be reserved for the trial judge.

The Divisional Court dismissed the appeal, with the majority finding that it would be extremely rare for a motions judge to be in an equal or better position than the trial judge to rule on the exclusion of expert evidence.

Matlow J. dissented, arguing the motions judge had jurisdiction under Rule 37.02(1) and should have considered the merits.

The appellant licensee appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario finding that it breached s. 45(1) of the Liquor Licence Act by permitting drunkenness on its premises, and imposing a 10-day licence suspension.

The Divisional Court dismissed the appeal, holding that s. 45(1) applies to anyone on the premises, not just patrons, and that due diligence is not an available defence in this regulatory context.

The majority found the Board's factual findings and the penalty reasonable.

A dissenting judge would have allowed the appeal on the basis that the Board failed to properly analyze whether the licensee 'permitted' the drunkenness.

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.

Following the dismissal of the applicant's application, the court determined the issue of costs.

The applicant argued it should be exempt from costs as a public interest litigant.

The court rejected this argument, finding the applicant had a material interest in the proceeding, as success would have halted an underlying police disciplinary hearing and an abuse of process motion against the applicant.

The respondents sought substantial indemnity costs, but the court awarded partial indemnity costs in the amount of $33,434.93.

The Ontario College of Teachers appealed a committee decision ordering the reinstatement of a teacher who had resigned after a sexual relationship with an 18-year-old student.

The College sought to introduce fresh evidence regarding the qualifications of the teacher's social worker and argued the committee's decision was unreasonable and lacked sufficient reasons.

The Divisional Court dismissed the appeal, finding the fresh evidence did not meet the Palmer test, the committee's decision was reasonable based on the evidence, and the reasons provided were adequate.

The applicant, a former municipal employee, sought judicial review and an order of mandamus reinstating him to his position after being dismissed without cause.

The Divisional Court dismissed the application, finding that the employer-employee relationship was effectively ended and beyond repair.

Applying Dunsmuir v. New Brunswick, the court held that the dismissal of a public employee under a contract of employment is governed by contract law, not public law, and that the applicant's remedies lie in an action for wrongful dismissal.

A police officer appealed a decision of the Ontario Civilian Commission on Police Services (OCCPS) that dismissed his appeal from a Hearing Officer's finding of misconduct.

The officer argued the Hearing Officer lacked jurisdiction because the Notice of Hearing was served outside the six-month limitation period under s. 69(18) of the Police Services Act.

The Divisional Court allowed the appeal, finding that OCCPS applied an incorrect legal test to determine when sufficient facts came to the Chief's attention, rendering its decision unreasonable.

The Court further held that the officer's guilty plea did not waive his right to appeal the jurisdictional defect, as consent cannot confer jurisdiction on a statutory tribunal.

The appellant owns a former cruise ship, the Jadran, which operates as a floating restaurant berthed in Lake Ontario.

The Municipal Property Assessment Corporation assessed the ship as a 'structure' and the lakebed it occupies as 'land' for taxation purposes.

The appellant appealed the application judge's decision upholding the assessment.

The Divisional Court dismissed the appeal, finding no error in the application judge's conclusions that the ship is a structure, that it occupies land owned by the Port Authority, and that the appellant is in possession of that land.

The applicant union sought judicial review of an arbitration award concerning the interpretation of 'temporary lay-off' under s. 56(2) of the Employment Standards Act, 2000.

The union argued that the employer's lay-off of over 200 employees became a termination after 13 weeks, triggering mass termination notice requirements.

The arbitrator, applying the Court of Appeal's decision in London Machinery, held that s. 56(2)(c) applied as a stand-alone provision because the collective agreement provided recall rights, meaning the lay-off could extend up to 35 weeks without becoming a termination.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the arbitrator's interpretation was defensible and supported by binding precedent.