J. Douglas Cunningham

The applicant, a professional horse trainer, sought judicial review of a penalty imposed by the Ontario Racing Commission after one of his horses tested positive for a Class III drug.

The applicant argued that the Commission denied him procedural fairness by refusing to disclose past penalty rulings, that the panel's rejection of a joint settlement proposal created a reasonable apprehension of bias, and that the imposed penalty of a 10-month suspension and $50,000 fine was patently unreasonable.

The Divisional Court dismissed the application, finding no denial of fairness, no reasonable apprehension of bias as the panel maintained an open mind, and that the penalty was reasonable given the applicant's prior disciplinary record.

The applicants sought leave to appeal a decision of the Ontario Municipal Board (OMB) granting minor variances to the respondents to construct a new two-storey building.

The applicants argued the OMB erred in law by subsuming the four tests under s. 45(1) of the Planning Act into a single test of impact, failing to require a demonstrated need for the variances, misapprehending evidence regarding building length and height, and imposing an unenforceable condition on a rear balcony.

The Divisional Court found reason to doubt the correctness of the OMB's decision on these questions of law and granted leave to appeal.

The tenant appealed a decision of the Ontario Rental Housing Tribunal that dismissed a motion to set aside an eviction order.

The Tribunal had found that the N11 agreement to terminate the tenancy was made voluntarily and without fraud, duress, or misrepresentation.

The Divisional Court dismissed the appeal, finding no error of law and noting that the Tribunal had properly considered the substance of the transaction and all surrounding circumstances.

The appellant appealed an interlocutory order of a motions judge who gave directions to an Assessment Officer regarding the assessment of costs.

The appellant argued the motions judge was functus officio and could not clarify that the respondents were entitled to non-tariff disbursements after the assessment had already commenced.

The Divisional Court dismissed the appeal, holding that the motions judge retained jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to implement and clarify his costs order, and was not varying it.

The appellant appealed the Board's decision refusing to issue a liquor licence for its U-Brew business.

The Divisional Court dismissed the appeal, finding no error of law and concluding that the Board's findings of fact were reasonable.

The Board properly interpreted the regulations in a broad, purposive manner in the interest of public safety and health, and was justified in refusing the licence under s. 6(2)(d) of the Liquor Licence Act given the appellant's history of non-compliance.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying compensation for eviction-related moving expenses.

The Divisional Court dismissed the appeal, finding that it lacked jurisdiction as the appeal did not raise a question of law under section 23 of the Compensation for Victims of Crimes Act.

Furthermore, the court held that the Board's factual finding that the expenses were unrelated to the subject incident was not patently unreasonable, arbitrary, or capricious.

The appellants appealed a judgment granting oppression remedies to the respondents, arguing there was no factual basis for the finding of oppression.

The Divisional Court upheld the findings of oppression, which included refusing to provide audited financial statements, calling shareholder meetings on short notice, and withholding monies for snowmobiles.

However, the court varied the judgment to remove the individual appellant's joint and several liability for the snowmobile payment, as no such relief was sought against him personally.

The appeal was otherwise dismissed, including challenges to the 12% interest rate and the costs award.

The applicant sought judicial review of the Ontario Human Rights Commission's decision to decline to deal with her complaint of discrimination based on marital status and age.

The Commission had found the complaint to be vexatious and out of time under section 34 of the Human Rights Code.

The Divisional Court held that the Commission was entitled to rely on the definition of 'vexatious' from Black's Law Dictionary and that its decision was not patently unreasonable.

The application for judicial review was dismissed.

The appellant appealed a trial judgment awarding $3,000 plus costs for defamation.

On appeal, the appellant brought a preliminary motion to introduce fresh medical records regarding his psychiatric condition, arguing it should relieve him of liability.

The Divisional Court dismissed the motion, applying the Palmer test and finding the evidence could have been adduced at trial and would not have altered the result.

The court found no error in the trial judge's decision and dismissed the appeal, awarding $4,000 in costs to the respondent.

The applicant sought judicial review of a 1997 Ontario Labour Relations Board decision dismissing his complaints against his union under sections 74 and 76 of the Labour Relations Act.

The Divisional Court dismissed the application, finding that the four-and-a-half-year delay in bringing the application was undue and inadequately explained.

Furthermore, applying the patent unreasonableness standard of review, the court held that the Board's conclusion that the union had not acted arbitrarily, discriminatorily, or in bad faith was not patently unreasonable.

The applicant also failed to exhaust alternative remedies regarding the section 76 claim.

The applicant sought judicial review to quash an order of the Alcohol and Gaming Commission of Ontario that granted intervenor status to the Liquor Control Board of Ontario in two stay motions.

The stay motions were based on allegations of witness tampering by an LCBO employee and the improper distribution of transcripts.

The Divisional Court held that the standard of review was correctness and found that the Board erred in granting intervenor status.

The Court concluded that the LCBO had no interest in the stay motions and its intervention would introduce a distortion into the adversarial process.

The order granting standing to the LCBO was quashed.

The applicants sought judicial review of orders made by the Alcohol and Gaming Commission of Ontario directing that a hearing proceed in camera and restricting the attendance of counsel for interested persons.

The Divisional Court quashed the orders, emphasizing that the Statutory Powers Procedure Act and the common law strongly favour open hearings.

The Court found that the Board failed to consider less restrictive measures to address its concerns regarding the presence of counsel while witnesses were excluded.

The applicant brought an application to quash an order of the Alcohol and Gaming Commission of Ontario that granted intervenor status to the Liquor Control Board of Ontario in two stay motions.

The stay motions were based on allegations of witness tampering by an LCBO employee.

The Divisional Court held that the Board's decision to grant intervenor status was incorrect, as the LCBO had no interest in the stay motions and its intervention would distort the adversarial process.

The order granting standing to the LCBO was quashed.

The applicant sought judicial review of three orders made by a panel of the Alcohol and Gaming Commission of Ontario that directed a hearing to proceed in camera and excluded counsel for interested persons.

The Divisional Court quashed the orders, emphasizing that section 9(1) of the Statutory Powers Procedure Act and the common law strongly favour open hearings.

The Court found that the Board failed to consider less restrictive measures to address its concerns regarding the presence of counsel while witnesses were excluded.

The insured retained a public adjuster on a contingency fee basis to assist with a fire insurance claim.

The insured applied for a declaration that the adjuster's fees were a 'loss' under statutory condition 11 of the Insurance Act, and therefore subject to the appraisal process under s. 128.

The application judge agreed.

The insurer appealed, arguing that 'amount of loss' should be restricted to property damage.

The Divisional Court dismissed the appeal, finding that economic losses were covered by the policy and the enhancer endorsement, and that any ambiguity should be resolved in favour of the insured.

The appellant appealed a decision refusing to certify an action against an investment advisor for negligence, misrepresentation, fraud, and conspiracy as a class proceeding.

The Divisional Court dismissed the appeal, finding that the motions judge made no error in principle and correctly concluded that a class action was not the preferable procedure due to the individual issues of detrimental reliance.

The appellant appealed a two-day liquor licence suspension imposed by the Board of the Alcohol and Gaming Commission of Ontario for serving an intoxicated customer.

The appellant argued there was no evidence to support the finding and that the Board's conduct created a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding there was sufficient evidence to support the Board's conclusions and no basis for a reasonable apprehension of bias.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission not to deal with his complaint under s. 34 of the Human Rights Code.

The Divisional Court dismissed the application, finding no error in the Commissioner's conclusion that the complaint could be more appropriately dealt with under the Labour Relations Act and that the applicant had already engaged in mediation during the arbitration process.

The court held that the Commissioner's decision was not patently unreasonable and awarded costs to the respondents.

The tenant appealed a decision of the Ontario Rental Housing Tribunal which found her claim for damages against the landlords was res judicata.

The tenant had previously sought damages for missing stored possessions, but the Tribunal initially ruled it lacked jurisdiction under the former wording of the Tenant Protection Act.

Following a legislative amendment clarifying jurisdiction, the tenant brought a fresh application, which the Tribunal dismissed on the basis of res judicata.

The Divisional Court allowed the appeal, finding the Tribunal erred in law in applying res judicata and that its rigorous application would be unfair given the uncertainty in the law at the material time.

The matter was remitted to the Tribunal to be heard on the merits.

The applicant moved to strike an affidavit and attachments filed by the respondent on an application for judicial review.

The materials were not before the Commissioner.

The Divisional Court granted the motion, holding that the record on judicial review should essentially be the material before the decision-maker, and the affidavit improperly sought to expand the record regarding the applicant's conduct rather than addressing jurisdictional error.