J. Douglas Cunningham

The defendants appealed a decision dismissing their motion to strike the plaintiff's action.

The plaintiff sued the Children's Aid Society alleging 'grooming', 'identity theft', and 'brainwashing' related to earlier child protection proceedings.

The Divisional Court allowed the appeal and dismissed the action, finding it was an abuse of process and a collateral attack on previous judicial findings that had repeatedly rejected these allegations.

The court also found the motion judge erred in failing to apply the Anns/Cooper test for a novel tort.

The applicant sought judicial review of a decision by the respondent's service manager to revoke her rent-geared-to-income housing subsidy.

The applicant had been granted the subsidy by a property manager without following proper procedures, a fact unknown to the applicant.

The Divisional Court found that the respondent failed to afford the applicant procedural fairness by not giving her an opportunity to comment under section 80 of the Social Housing Reform Act, 2000, and by having the same person who participated in the original decision conduct the review, contrary to section 58(2) of Ontario Regulation 298/01.

The decision was set aside and remitted for reconsideration by a different decision-maker.

The appellants co-signed a bank loan for a third party who subsequently defaulted and declared bankruptcy.

The bank obtained judgment against the appellants at trial.

On appeal, the appellants argued the trial judge demonstrated a reasonable apprehension of bias and failed to properly assess conflicting evidence regarding their understanding of the loan documents.

The Divisional Court dismissed the appeal, finding no apprehension of bias and no palpable and overriding error in the trial judge's factual findings.

However, the court granted judgment on the appellants' crossclaim against the primary borrower, which the trial judge had overlooked.

The appellants co-signed a loan for a third party who subsequently defaulted.

The respondent bank obtained judgment against the appellants at trial.

On appeal, the appellants argued the trial judge demonstrated a reasonable apprehension of bias and made palpable and overriding errors in finding they understood their obligations as co-signers.

The Divisional Court dismissed the appeal, finding no apprehension of bias and deferring to the trial judge's factual findings that the appellants were informed of their liability.

However, the court granted the appellants' crossclaim against the primary borrower, which the trial judge had overlooked.

The landlord appealed a decision of the Ontario Rental Housing Tribunal which stayed its application to evict the tenant.

The tenant had breached a mediated settlement regarding rent arrears and subsequently filed for bankruptcy.

The Tribunal held that the eviction application was a claim provable in bankruptcy and thus stayed under section 69.3 of the Bankruptcy and Insolvency Act.

The Divisional Court allowed the appeal, finding that the landlord's application sought only eviction, not the payment of arrears, and therefore was not a claim provable in bankruptcy.

The matter was remitted to the Tribunal for a new hearing.

The defendant in a motor vehicle accident action served a jury notice.

At the commencement of trial, the plaintiffs moved to strike the jury notice, arguing the main plaintiff, a Muslim-Canadian woman of Afghani descent, would not receive a fair trial due to post-9/11 racism and the political climate.

The trial judge struck the jury notice, taking judicial notice of a reasonable apprehension of bias.

The Divisional Court allowed the defendant's appeal, holding that the trial judge erred in taking judicial notice of such bias without evidence, as the facts were not so notorious as to be beyond reasonable debate.

The matter was remitted to a different trial judge.

The appellant appealed a decision of the Deputy Director of Titles under the Boundaries Act confirming the location of a boundary between her property and the respondents' property.

The Deputy Director had rejected the boundary lines proposed by both parties' expert surveyors, instead relying on a 1970 survey and the historical location of a snake rail fence.

The Divisional Court determined the standard of review was reasonableness and found that the Deputy Director's decision was supported by the evidence.

The appeal was dismissed.

The plaintiff was injured in a motor vehicle accident and retained a paralegal to negotiate a settlement with the tortfeasors' insurer.

The plaintiff later sued the tortfeasors and the paralegal, alleging the paralegal was negligent and the settlement was invalid.

The paralegal cross-claimed against the tortfeasors, arguing their insurer owed a duty of care to the plaintiff not to negotiate with an unauthorized paralegal.

The Divisional Court allowed the tortfeasors' appeal and struck the cross-claim, holding that a liability insurer owes no duty of care to a plaintiff making a claim against its insured, as this would create an impossible conflict of interest.

The applicant faculty association sought judicial review of an arbitration award that dismissed a policy grievance regarding the university's publication of student evaluations of teaching (SET) scores.

The arbitrator had found that publishing the scores did not violate the collective agreement or the Freedom of Information and Protection of Privacy Act (FIPPA).

The Divisional Court applied the Dunsmuir framework, determining that the standard of review for the collective agreement interpretation was reasonableness, and for the FIPPA interpretation was correctness.

The court upheld the arbitrator's decision, finding her interpretation of 'personal information' in the collective agreement reasonable and her application of the employment-related records exclusion in FIPPA correct.

The application for judicial review was dismissed.

The moving party sought an order extending the time to file a Notice of Appeal from a Small Claims Court decision.

The moving party had previously brought an unsuccessful motion for a new trial in the Small Claims Court.

The Divisional Court applied the test from Frey v. MacDonald and found the moving party had not satisfied the requirements.

The motion for an extension of time was dismissed with costs fixed at $3,500.

The applicant sought judicial review of a penalty imposed by the Ontario Racing Commission for an EPO infraction.

The applicant argued that a Notice to the profession issued by the Commission constituted an error of law and that the penalty was unreasonable.

The Divisional Court dismissed the application, finding that the Notice was merely a declaration of intention to impose more severe penalties and that the Commission's penalty decision deserved deference.

Costs of $5,000 were awarded to the respondent.

The moving party brought a motion pursuant to s. 21(5) of the Courts of Justice Act to set aside an order of Gans J. The Divisional Court considered the criteria for setting aside a Registrar's order, noting that the overriding consideration is what the justice of the case requires.

The court found that Gans J. was entitled to conclude there was insufficient evidence to relieve the appellant from the operation of the rules.

The motion was dismissed with costs payable from the estate and charged against the moving party's interest.

The estate trustee and a residual beneficiary appealed a trial judgment that found the deceased's daughter and grandchildren were dependants under the Succession Law Reform Act and ordered the estate to be kept open indefinitely to provide them housing.

The Divisional Court upheld the finding that the will failed to adequately provide for the dependants.

However, the Court found the trial judge's administrative scheme, which required the estate to obtain a mortgage it could not afford, was impossible to implement.

The Court varied the order, directing the property be transferred to the dependant daughter, who must obtain a mortgage to pay estate debts and a lump sum to the residual beneficiary, with the property to be sold in 2018 and proceeds divided.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a Complaints Committee's finding of no misconduct by his treating physicians.

The applicant argued that the Committee breached procedural fairness by withholding the identity of an independent assessor, thereby preventing cross-examination.

The Divisional Court dismissed the application, holding that the Committee exercises a screening function and owes a limited duty of procedural fairness to complainants, which does not include the right to cross-examine an assessor.

The Crown sought costs for an initial pleadings motion, motions for leave to appeal, and the appeal, claiming success in having portions of the action struck and obtaining a stay.

The respondent argued for costs, asserting general success.

The Divisional Court found success on the appeal was divided and awarded no costs for the appeal or leave motions.

However, the court found the respondent achieved substantial success on the original motion and awarded the respondent costs of the motion fixed at $27,000, reduced by 25% to reflect partial success.

The Municipal Property Assessment Corporation appealed a decision of the Assessment Review Board that combined two separate lots on a registered plan of subdivision into a single assessment roll number classified as 'large industrial property class'.

The appellant argued the properties should be assessed separately as 'industrial property class'.

The Divisional Court dismissed the appeal, finding the Board correctly interpreted the word 'parcel' under the Assessment Act and O. Reg. 282/98, as the properties were occupied by a single occupant and collectively exceeded the required square footage.

The applicant union sought judicial review of an arbitration award which held that the respondent employer was not obliged to pay the Ontario Health Premium (OHP) on behalf of its employees under the collective agreement.

The Divisional Court applied the patent unreasonableness standard of review, noting the strong privative clause in the Police Services Act.

The court found that the arbitrator's conclusion—that the collective agreement language was intended to cover the procurement of OHIP coverage rather than a general health tax like the OHP—was not patently unreasonable.

The application was dismissed.

The City of Toronto appealed a decision ordering its Chief Building Official to issue building permits for sun rooms using sandwich panels and to evaluate the applicant's load test data.

The City argued that section 9(1) of the Building Code Act granted the official discretion to refuse to evaluate test results if the testing method was not specified in the Building Code.

The Divisional Court dismissed the appeal, holding that section 9(1) does not grant discretion to defeat applications relying on design methods authorized in the Building Code, such as load testing.

The court also upheld the motions judge's factual finding that the submitted data was adequate and dismissed the appeal on costs.

The appellant appealed a decision of the Licence Appeal Tribunal directing the revocation of his registration as a real estate salesperson.

The Tribunal found that the appellant failed to disclose his status as a registered salesperson and his interest as a beneficial purchaser in multiple transactions.

Furthermore, he acted for vendors in transactions where he was the undisclosed beneficial purchaser, violating the standards of honesty and integrity required under the Real Estate and Business Brokers Act.

The Divisional Court held that the Tribunal's conclusion was reasonable and dismissed the appeal, awarding costs of $3,000 to the respondent.

The tenants appealed an Ontario Rental Housing Tribunal decision that dismissed their application for rent abatement and damages due to the landlord's failure to repair.

The tribunal had ruled that because the repair issues were addressed in a previous order, the new application was barred by res judicata.

The Divisional Court held that the tribunal erred in law, as the tenants were seeking relief for ongoing breaches and new expenses incurred after the landlord failed to comply with the previous order.

The appeal was allowed and the matter remitted to the tribunal for a new hearing.