J. Douglas Cunningham

The applicant insurer sought judicial review of decisions by a FSCO arbitrator and Director's delegate finding that the respondent insured suffered a catastrophic impairment under s. 2(1.1)(e)(i) of the Statutory Accident Benefits Schedule.

The insurer argued the arbitrator unreasonably interpreted 'reasonable period of time' for a Glasgow Coma Scale score.

The Divisional Court dismissed the application, holding that the standard of review is patent unreasonableness and the tribunal's decisions were supported by evidence and within its specialized jurisdiction.

The applicant union sought judicial review of two arbitration awards which held that the employer was not required to pay the Ontario Health Premium on behalf of employees under the collective agreement.

The Divisional Court determined that the standard of review for the arbitrators' interpretation of the collective agreement, which included reference to external legislation, was patent unreasonableness.

The court found that the arbitrators' interpretation of the unique language in the collective agreement was reasonable and dismissed the applications for judicial review.

The applicant, a citizens' group, sought judicial review of the City of Toronto and TTC's decision to construct a dedicated streetcar right-of-way on St. Clair Avenue West.

The applicant argued the project breached s. 24(1) of the Planning Act for failing to conform with the official plan and that the City failed to complete a proper environmental assessment.

The Divisional Court dismissed the application, finding the environmental assessment challenge was an impermissible collateral attack on the Minister's decision to refuse a 'bump up' request.

The Court also held that the project conformed with the transportation policies of the newly approved Official Plan.

The Director of the Ontario Disability Support Program appealed a decision of the Social Benefits Tribunal, which found that monthly child support payments made by the respondent's father to her mother were not income to the respondent under the Ontario Disability Support Program Act.

The respondent, an adult with severe disabilities, received income support.

The Director had deducted the child support payments from her income support.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the Tribunal's conclusion that the payments were intended to compensate the mother for caregiving and were not income paid to or on behalf of the respondent.

The applicant employer sought judicial review of an arbitrator's award requiring it to pay the Ontario Health Premium on behalf of its employees under the collective bargaining agreement.

The Divisional Court determined that the appropriate standard of review for the arbitrator's interpretation of the agreement was patent unreasonableness.

Finding that the arbitrator's conclusion was not patently unreasonable, the court dismissed the application for judicial review.

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.

The appellant appealed a trial decision dismissing his claim regarding a damaged sculpture.

The trial judge found that the purported assignment of the sculpture to the appellant was invalid under s. 53(1) of the Conveyancing and Law of Property Act, as the sculpture had been pledged to the respondent as collateral for an outstanding debt.

The Divisional Court upheld the trial judge's findings, including the valuation of the sculpture based on expert testimony and the conclusion that the respondent owed no duty of care to the appellant when the sculpture was damaged.

The appeal was dismissed with costs.

The applicant, a licensed driver, was penalized by track judges for failing to provide a proper urine sample during random drug testing.

He appealed to the Ontario Racing Commission, which held a de novo hearing and upheld the penalty.

During the hearing, the Commission permitted the senior track judge who made the initial decision to testify.

On judicial review, the Divisional Court held that allowing the first-instance judge to testify created a reasonable apprehension of bias.

The application was allowed and the Commission's decision was quashed.

The appellant, a police officer, was found guilty of four allegations of misconduct relating to the misappropriation of approximately $4,000.

The Hearing Officer ordered his dismissal forthwith, a decision upheld by the Ontario Civilian Commission on Police Services.

On appeal to the Divisional Court, the appellant argued against the penalty.

Applying a standard of reasonableness, the court found that the Commission properly considered all relevant factors and that dismissal was within the range of available penalties for fraudulent activity by a police officer.

The appeal was dismissed.

The applicants, litigation guardians for severely developmentally delayed adults residing in Schedule I facilities, sought judicial review of the Minister of Community and Social Services' decision to close the remaining institutions.

The applicants argued the Minister lacked statutory authority under the Developmental Services Act to close the facilities.

The Divisional Court held that the Minister's broad discretionary power to establish and maintain facilities included the power to close them.

However, the Court declared that the consent of the incapable residents' substitute decision makers is required before they can be transferred to community placements, invoking the parens patriae jurisdiction to protect their fundamental interests.

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 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 appellant insurance broker appealed the revocation of its certificate of registration by the Registered Insurance Brokers of Ontario (RIBO).

The revocation was based on the appellant's failure to maintain at least two contracted standard insurance markets, as required by RIBO guidelines interpreting the regulatory requirement to conduct business as an insurance broker.

The Divisional Court dismissed the appeal, finding that the Committee had the implied statutory authority to revoke the certificate, reasonably interpreted the regulation, and properly proceeded without a hearing because the appellant failed to request one after receiving notice.

The respondent was successful on an appeal and sought costs on a partial indemnity basis in the amount of $70,987 plus disbursements and taxes.

The appellants argued the claimed rates and hours were excessive, particularly the attendance of two counsel and the time spent reviewing transcripts.

The court agreed that the hours claimed were excessive, the attendance of two counsel was unnecessary, and certain disbursements were not compensable.

Costs were fixed at $55,000 inclusive of disbursements and GST.

The applicant witnessed a police officer use excessive force against a woman and filed a complaint under the Police Services Act.

The Ontario Civilian Commission on Police Services refused to deal with the complaint, finding the applicant was not 'directly affected' by the conduct.

On judicial review, the Divisional Court held that the standard of review was correctness and that the applicant, as a firsthand witness who was disturbed by the incident, was 'directly affected' within the meaning of the Act.

The application was granted and the complaint remitted to the Chief of Police.

The appellant appealed a summary judgment ordering him to pay outstanding legal fees to his former solicitors and dismissing his counterclaim for an assessment of those accounts.

The Divisional Court allowed the appeal, finding the motion judge erred by failing to consider the court's inherent jurisdiction to refer accounts for assessment within twelve months of delivery, especially given the solicitors' failure to advise the client of his right to an assessment.

The summary judgment was set aside and the accounts were referred to an Assessment Officer.

Following the dismissal of the appellant's appeal, the court considered written submissions on costs.

The court declined to award costs to the successful respondent co-operative, citing the appellant's difficult financial circumstances and the respondent's failure to cooperate with the City to enable the appellant to obtain a housing subsidy.

The court also rejected the respondent's request for costs against the appellant's solicitor personally.

No costs were awarded.

The appellants leased summer resort lots within Rondeau Provincial Park from the Crown.

The leases expressly restricted the use of the premises to recreational purposes and stated that the Tenant Protection Act, 1997 did not apply.

The appellants appealed a decision of the Ontario Rental Housing Tribunal, arguing that the Act bound the Crown by necessary implication.

The Divisional Court dismissed the appeal, holding that the Act does not bind the provincial Crown and that the cottages do not constitute residential units within the meaning of the Act.

Deloitte & Touche LLP appealed an order of the Ontario Securities Commission authorizing the disclosure of written answers provided by Deloitte during an investigation to the respondents in a related enforcement proceeding.

Deloitte argued the information was not relevant, that disclosure was not in the public interest, and that the information was privileged.

The Divisional Court dismissed the appeal, finding the Commission reasonably concluded the information was relevant to the respondents' ability to make full answer and defence, that the public interest favoured disclosure, and that the information was not privileged because it did not originate in confidence.

The appellant, a staff sergeant, appealed a decision of the Ontario Civilian Commission on Police Services upholding his conviction for discreditable conduct.

The charge arose from a meeting with a constable who had previously filed a racial harassment complaint against him.

The hearing officer found the appellant's conduct constituted a reprisal based on the constable's subjective perception, despite accepting the appellant's evidence denying any reprisal intent.

The Divisional Court allowed the appeal, finding the hearing officer and Commission erred by focusing on the constable's subjective perception rather than the appellant's intent, and by failing to consider whether the conduct was likely to bring discredit upon the police force.

The conviction was set aside.