J. Douglas Cunningham

The appellant teacher appealed a decision of the Fitness to Practise Committee revoking his teaching certificate due to incapacity.

The Committee relied on a provisional psychiatric diagnosis of delusional disorder based on a document review, as the appellant refused to attend a psychiatric assessment or the final days of his hearing.

The Divisional Court dismissed the appeal, finding the expert evidence was admissible and the Committee's decision was reasonable.

The Court also found no breach of procedural fairness, noting the appellant waived his right to complain by choosing not to attend the hearing.

The applicants brought a joint motion on consent for an order allowing their application for judicial review of several decisions of the Human Rights Tribunal of Ontario.

The Divisional Court granted the motion, quashed the Tribunal's decisions, and ordered that the matter be adjudicated in a hearing de novo before a differently constituted panel of the Tribunal.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his application alleging employment discrimination based on race and place of origin.

The Divisional Court found that the Tribunal's decision was entirely reasonable, as the Vice-Chair had thoroughly reviewed the evidence, assessed credibility, and provided cogent reasons for preferring the respondent's evidence.

The application for judicial review was dismissed with costs.

The applicant sought judicial review of a decision by the Child and Family Services Review Board.

The applicant had complained about the Children's Aid Society's failure to respond to his request to correct records and facilitate access to his children.

The Board ordered the CAS to comply with complaint review procedures, which the CAS subsequently did.

When the applicant attempted to complain further about the CAS's response, the Board closed its file.

The Divisional Court dismissed the application for judicial review, holding that the Board was functus officio after issuing its final decision and had no jurisdiction to hear further complaints on the matter.

The applicant union sought judicial review of an arbitrator's decision upholding the employer's refusal to pay a grievor for sick days and holidays.

The employer had rejected the grievor's medical notes after a supervisor overheard a rumour that the grievor planned to call in sick and manipulate her blood pressure to obtain a note.

The Divisional Court dismissed the application, finding the arbitrator reasonably admitted the rumour evidence not for its truth, but to explain why the employer requested further medical information.

The court upheld the arbitrator's conclusion that the union failed to meet its onus of proving illness due to the insufficiency of the medical notes provided.

The parties were involved in a long-standing dealership agreement that deteriorated over time.

The plaintiff originally obtained a consent interlocutory injunction preventing the defendant from terminating the agreement, which remained in place for nearly ten years without the matter proceeding to trial.

The defendant successfully moved to dissolve the injunction due to inordinate delay, but the plaintiff subsequently obtained a fresh interim injunction from a different judge after receiving a new termination notice.

On appeal, the Divisional Court upheld the dissolution of the original injunction, finding no reversible error.

However, the court allowed the defendant's appeal and set aside the fresh injunction, concluding that the motion judge made palpable and overriding errors and that the plaintiff failed to establish irreparable harm or that the balance of convenience favoured continuing the hostile business relationship.

The respondent sued the Attorney General of Canada for false imprisonment after being held in custody at a federal penitentiary pursuant to an order to produce.

The appellant moved for summary judgment, arguing it was protected by statutory immunity, but the motion judge dismissed the motion.

On appeal, the Divisional Court allowed the appeal and granted summary judgment, holding that correctional authorities are immune from civil liability under section 142 of the Courts of Justice Act and section 8 of the Public Authorities Protection Act when acting in good faith in accordance with a court order.

The appellants appealed a trial judgment awarding damages and costs to the respondents for breach of a contract to purchase bakery equipment.

The trial judge found the appellants waived conditions in the offer to purchase by signing a lease, did not repudiate the offer, and that the individual appellant was personally liable.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact or mixed fact and law.

The court also upheld the costs award, finding it was within the trial judge's discretion and not disproportionate.

The Attorney General applied for forfeiture of $5,545 seized during a drug investigation under the Civil Remedies Act.

The respondent brought a motion to strike portions of the supporting affidavit that referred to his criminal record and past drug-related activity, arguing it was inadmissible propensity evidence.

The motion judge dismissed the motion.

The respondent appealed to the Divisional Court.

The Divisional Court dismissed the appeal, holding that similar fact evidence of bad character is admissible in civil forfeiture proceedings where its probative value outweighs its prejudicial effect, as it is relevant to whether the seized money is proceeds of unlawful activity.

The applicant insurer sought judicial review of a Director's Delegate's decision finding that the respondent suffered a catastrophic impairment under s. 2(1.1)(g) of the Statutory Accident Benefits Schedule.

The Divisional Court granted the application and set aside the decision, holding that the Delegate erred in law by concluding that a marked impairment in only one of four areas of functioning was sufficient for a catastrophic impairment designation.

The Court further held that the Delegate erred by failing to exclude pain associated with physical injuries when assessing impairment due to mental or behavioural disorder, as required by the AMA Guides incorporated into the legislation.

The appellant appealed a decision of the Liquor License Board finding violations of the Liquor License Act for permitting drunkenness and allowing alcohol to be removed from the premises, as well as the resulting 10-day license suspension and added conditions.

The appellant argued denial of natural justice due to delayed disclosure, improper limits on cross-examination, and the Board's treatment of an inspector's evidence.

The Divisional Court dismissed the appeal, finding no denial of natural justice as the appellant had immediate notice of the infractions, and holding that the Board properly assessed the inspector's observational evidence.

The global sanction was also upheld.

The appellants appealed a decision of the Discipline Committee of the Registered Insurance Brokers of Ontario following a guilty plea for operating in a net trust deficit position and failing to maintain proper records.

The Divisional Court dismissed the appeal, finding it was statute-barred as it was filed out of time under the Rules of Civil Procedure.

The Court also addressed the merits, concluding the Committee's decision was reasonable, the brief written reasons were sufficient, and the requirement to file audited financial statements for three years was within the Committee's jurisdiction.

The applicant purchased property for a retail store and sought access from a provincial highway.

The Ministry of Transportation denied the request for safety reasons, citing a policy preferring municipal road access when available.

The applicant sought judicial review, arguing the Ministry unlawfully fettered its discretion by strictly applying the policy.

The Divisional Court dismissed the application, finding the standard of review was reasonableness and that the Ministry had genuinely considered alternatives and expert evidence before reasonably concluding no safe highway access could be provided.

The applicant brought an application for judicial review challenging the promulgation of a regulation prescribing minimum setback requirements for wind energy facilities.

The applicant argued the Minister of the Environment failed to consider the precautionary principle in the ministry's statement of environmental values, as required by section 11 of the Environmental Bill of Rights.

The Divisional Court dismissed the application, finding that the Minister's decision was protected by privative clauses and that the Minister had complied with the mandated process by considering all principles, including the precautionary principle, alongside other policy factors.

The applicant sought judicial review of a Human Rights Tribunal decision finding that the respondent was discriminated against due to the lack of a special diet allowance for hypoproteinemia under the Ontario Disability Support Program.

The Divisional Court reviewed the Tribunal's decision on a reasonableness standard.

The Court found that there was no evidence before the Tribunal to support its finding that eating additional protein from food sources is generally recognized in the Ontario medical community as an appropriate treatment for hypoproteinemia.

Consequently, the Tribunal's decision was deemed unreasonable and quashed regarding the respondent's claim for a special diet allowance for elevated protein requirements.

The applicant sought an adjournment of its judicial review application pending the Ontario Energy Board's reconsideration of an earlier decision regarding the applicant's failure to sign an assignment document.

The Divisional Court granted the adjournment, noting that the outcome of the reconsideration could significantly impact the judicial review application.

Costs of $600 each were awarded to the intervenors.

The applicant, a law student, was expelled from the University of Western Ontario following a series of disturbing behaviours and a threatening Facebook post directed at a fellow student.

He sought judicial review of the University Discipline Appeal Committee's decision upholding his expulsion.

The Divisional Court dismissed the application, finding it was barred by unexplained delay.

On the merits, the court held that the applicant's Facebook post was not protected by the Charter right to free speech, the university's procedures were fair, and the Code of Student Conduct reasonably applied to off-campus conduct that adversely affected the university environment.

The appellant was successful on appeal, which resulted in an order for a new trial due to the trial judge's inadequate reasons.

The appellant sought costs for both the appeal and the first trial.

The Divisional Court awarded the appellant $15,000 in costs for the appeal, noting the issues were not complex.

However, because the need for a new trial was not the respondents' fault, the court ordered that the appeal costs not be payable until the completion of the second trial, and that the costs of the first trial be in the cause.

The appellant appealed the dismissal of her libel action against the respondents regarding an allegedly defamatory article published in a newspaper.

The trial judge had dismissed the action, finding the statements were substantially true and constituted fair comment, largely based on an adverse credibility finding against the appellant.

The Divisional Court allowed the appeal and ordered a new trial, holding that the trial judge failed to provide adequate reasons for his credibility findings and failed to analyze conflicting or corroborating evidence, rendering the reasons insufficient for proper appellate review.

Following the dismissal of the appellant's appeal, the successful respondents sought costs totaling approximately $98,000 on a substantial indemnity basis.

The appellant conceded the respondents' entitlement to costs but argued the quantum was excessive, suggesting $20,000 was appropriate.

The Divisional Court reviewed the factors under Rule 57.01, noting the appeal was not particularly complex despite the appellant's conduct lengthening the proceedings.

Applying the principle that costs must be fair and reasonable rather than an exact measure of actual costs, the court found the respondents' claimed hours and amounts to be unreasonable.

The court fixed total costs at $25,000, apportioned among the three respondent groups.