J. Douglas Cunningham

The plaintiff appealed a trial judge's decision to deduct Income Replacement Benefits (IRBs) from a jury award for past income loss, which reduced the award to zero, and the subsequent costs order against him.

The Divisional Court upheld the IRB deduction, finding no evidence the jury had already accounted for it.

However, the court allowed the appeal regarding costs, finding the trial judge breached natural justice by deciding the defendants' entitlement to costs without hearing submissions from the plaintiff.

The costs issue was remitted to the trial judge.

The appellant appealed an order dismissing his motion to vary a final child support order and rescind arrears.

The original order imputed an income of $30,000, but the appellant provided uncontradicted evidence that he had not held employment since 1998 due to severe depression and was receiving disability benefits.

The Divisional Court found that the motions judge made a palpable and overriding error by ignoring this material change in circumstances and relying on the respondent's unsworn statements.

The appeal was allowed, arrears were reduced to $15,240, and ongoing support was reduced to $161 per month.

The applicant sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal that reduced his temporary partial disability benefits.

The Tribunal had applied a policy requiring partially disabled workers to engage in a self-directed vocational rehabilitation program to demonstrate reasonable efforts to return to work.

The Divisional Court applied the reasonableness standard of review and held that the Tribunal did not exceed its jurisdiction in interpreting the legislation.

The court found the Tribunal's decision to reduce benefits due to inadequate effort to seek employment was reasonable and dismissed the application.

The applicants sought judicial review of a decision by the Ontario Workplace Safety and Insurance Tribunal regarding permanent disability entitlements under the Workers' Compensation Act.

The applicants argued that the Tribunal erred in capping the maximum permanent disability supplement at the amount of a full old age security pension under section 147(8), asserting that the calculation formulas in sections 147(9) and (10) should prevail.

The Divisional Court applied a reasonableness standard of review and dismissed the application, finding that the Tribunal's interpretation accorded with the plain language of the statute and gave meaning to all provisions.

The applicants sought judicial review of an interlocutory order made by the Human Rights Tribunal of Ontario in a complaint that had been ongoing since 2003.

The Divisional Court quashed the application, declining to depart from the general rule against hearing judicial reviews of interlocutory orders, despite the troubling history and delay.

The appellants appealed a trial decision granting judgment of $13,413.04 to the respondent, arguing the trial judge misapprehended evidence and provided inadequate reasons.

The Divisional Court dismissed the appeal, finding that the trial judge's findings of fact were reasonable, supported by the evidence, and entitled to deference absent a palpable and overriding error.

The court also held that the trial judge's reasons adequately explained his conclusions and provided a sufficient basis for appellate review.

The plaintiff brought motions for leave to appeal two interlocutory orders that dismissed a motion to continue an ex parte Anton Piller order and dismissed subsequent motions for relief under Rules 30 and 45.

The Divisional Court dismissed the motions for leave to appeal, finding that the motion judge properly considered the matter de novo and correctly concluded that the plaintiff failed to establish a strong prima facie case to justify continuing the intrusive order.

The court found no reason to doubt the correctness of the orders and no denial of natural justice.

The applicant employer successfully sought judicial review of an arbitrator's decision, resulting in the reinstatement of the grievor's employment termination.

The parties agreed the applicant was entitled to partial indemnity costs, leaving only the quantum to be determined.

The court assessed the claimed fees and disbursements, reducing the fees to $10,000 and disbursements to $2,535, noting the complexity of the proceeding and the reasonable expectations of the unsuccessful party under Rule 57.01(1).

The appellant appealed a civil jury verdict dismissing his claims for assault, negligence, and intentional infliction of nervous shock against police, ambulance attendants, and store security, and awarding damages on the respondents' counterclaims.

The appellant argued the trial judge erred by refusing adjournments, admitting prejudicial expert testimony, and excluding medical reports.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's discretionary rulings on adjournments and evidence, and concluding there was a sufficient basis for the jury's punitive damages award.

The applicant sought an order of mandamus compelling the City of Toronto to issue notices of rent reduction to tenants of 29 residential complexes, following a reduction in municipal property taxes.

The City admitted it failed to provide the notices within the prescribed time under the Residential Tenancies Act, 2006.

The Divisional Court dismissed the application for mandamus, finding that issuing the notices years late could mislead tenants, as the one-year limitation period to claim a rent reduction had already expired.

The court also declined to grant a declaration of the City's statutory breach, as it would have no practical effect, but allowed a motion to add a tenant as a party.

The applicant hospital sought judicial review of two interest arbitration awards that ordered retroactive wage increases for employees who were no longer actively employed.

The hospital argued that retroactivity was not a matter in dispute between the parties and that the arbitration board exceeded its jurisdiction and denied procedural fairness by deciding the issue without giving the parties an opportunity to make submissions.

The Divisional Court held that the board's decision was unreasonable because it failed to explain why it was necessary to deal with retroactivity when the parties had agreed it was not in dispute.

The Court also found a denial of procedural fairness and set aside the portion of the awards dealing with retroactivity.

The landlord appealed a Landlord and Tenant Board decision granting the tenants a 2.5 per cent rent reduction due to the loss of green space resulting from infill construction.

The Board had found the lands constituted a 'common recreational facility' under the Tenant Protection Act, 1997.

The Divisional Court allowed the appeal, holding that ordinary green space does not meet the statutory definition of a facility, which requires something built or installed to perform a particular function.

The Court also found the Board erred in law by calculating the rent reduction using a novel mathematical approach rather than the mandatory method prescribed by regulation.

Following the dismissal of the appellants' appeal, the successful respondents sought costs of $31,804.58.

The appellants submitted that costs should be fixed at $20,000.

The Divisional Court agreed with the appellants, fixing costs at $20,000 inclusive, noting that this amount was fair, reasonable, and proportionate to the amount at issue.

The applicant, a paralegal, sought a declaration that the Law Society of Upper Canada's by-laws regulating paralegals under the Access for Justice Act, 2006 were of no force and effect, arguing the Act infringed s. 15 of the Charter.

He also sought judicial review of the Lieutenant Governor's decision to grant royal assent to the Act.

The Divisional Court dismissed the application, holding that occupational status is not a protected ground under s. 15 of the Charter.

Furthermore, the court held that the granting of royal assent is a constitutional convention not subject to judicial review.

The applicant sought judicial review of an Ontario Racing Commission decision suspending his racing licenses for ten years and imposing a $20,000 fine for administering a performance-enhancing drug (EPO) to a horse.

The applicant argued his confession to investigators was involuntary and obtained in violation of his Charter rights.

The Divisional Court dismissed the application, finding the statement was admissible under the Statutory Powers Procedure Act and statutory compulsion, and that the common law confession rule and section 7 of the Charter did not apply to these administrative proceedings.

The court also upheld the penalty as reasonable given the need for general deterrence in the horse racing industry.

The appellant solicitor appealed an order requiring him to personally pay $10,000 in costs under Rule 57.07 of the Rules of Civil Procedure.

The motions judge had awarded costs against the solicitor largely due to allegations of unprofessional conduct and conducting the litigation in an unreasonable manner.

The Divisional Court allowed the appeal, finding that the motions judge failed to apply the 'extreme caution' principle and did not establish how the solicitor's conduct caused costs to be incurred unnecessarily.

The court emphasized that Rule 57.07 is compensatory, not punitive, and should not be used to sanction professional misconduct that does not result in wasted costs.

The appellants appealed a judgment that awarded the respondents a declaration of trespass, general damages, punitive damages, and costs following a property line dispute over a fence.

The application judge had decided the matter under Rule 14.05(3) of the Rules of Civil Procedure despite conflicting affidavit evidence.

The Divisional Court allowed the appeal in part, holding that Rule 14.05(3) is not available for the resolution of general and punitive damage claims where material facts are in dispute.

The court set aside the damages and costs awards and directed a trial of an issue regarding the respondents' entitlement to damages.

The Director of the Ontario Disability Support Program appealed a Social Benefits Tribunal decision finding that s. 5(2) of the ODSPA, which denies benefits to individuals whose sole impairment is addiction, violated the Human Rights Code.

The Divisional Court dismissed the appeal, upholding the Tribunal's finding that the respondents, who were disabled by alcoholism, were discriminated against.

The Court confirmed that the Tribunal was not required to apply the third, dignity-focused step of the Law test to establish discrimination under the Code.

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.

The appellant appealed an order that denied retroactive child support and set ongoing support at $45.00 per month.

The Divisional Court found that the motions judge made palpable and overriding errors by relying on unsworn submissions from unrepresented parties, failing to consider retroactive support for one of the children, and arbitrarily reducing the appellant's employment expenses without reasons.

The appeal was allowed, the order set aside, and the matter remitted for rehearing with directions for full financial disclosure.