John R. McCarthy

The appellant appealed a Licence Appeal Tribunal (LAT) decision and a reconsideration decision that denied his claim for ongoing income replacement benefits following a motor vehicle accident.

The appellant argued the LAT erred in law by admitting the insurer's expert reports without the required expert forms, misinterpreting the Statutory Accident Benefits Schedule (SABS), and denying procedural fairness.

The Divisional Court dismissed the appeal, finding the adjudicator properly exercised her discretion to admit the reports and weigh the evidence, correctly applied the SABS disability tests, and afforded the appellant procedural fairness.

The applicant employer sought judicial review of an arbitration award which held that, although the employer had the authority to change the pension plan under the collective agreement, it was estopped from freezing the Defined Benefits component until the expiry of the agreement.

The arbitrator found the employer made a clear representation in 1999 that employees choosing the Defined Benefits plan would remain in it until retirement, and the union detrimentally relied on this by losing the opportunity to negotiate protections.

The Divisional Court dismissed the application, finding the arbitrator's application of the doctrine of estoppel and his factual findings were reasonable and entitled to deference.

The defendants brought a motion for leave to appeal an order of Steele J. The Divisional Court granted leave to appeal to determine whether it is legally possible for some limited partners to bring a common law derivative action on behalf of a limited partnership against a general partner.

Costs of the motion were fixed at $5,000, payable in the discretion of the panel hearing the appeal.

The moving parties, Hyundai Motor Company and Hyundai Auto Canada Corp., sought leave to appeal the order of Barnes J. dated June 10, 2022.

The Divisional Court dismissed the motions for leave to appeal.

Costs of $4,000 were awarded against each moving party, payable to the respondent within 30 days.

The defendant brought a motion for leave to appeal the order of Healey J. dated August 9, 2022.

The Divisional Court dismissed the motion and ordered the moving party to pay costs of $5,000 all-inclusive to the responding party within 30 days.

The Registrar appealed a License Appeal Tribunal decision that declined to revoke the respondents' funeral director and establishment operator licences.

The respondent had previously pleaded guilty to stealing approximately $86,000 from a local charity to pay business debts.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Tribunal's assessment that the respondent's conduct was out of character, that he had insight into his misconduct, and that public protection did not require revocation.

The applicant sought an equitable remedy to allocate the payment of a mortgage and a costs award from the proceeds of sale of a property (Osprey) that had been fraudulently conveyed to her, rather than from an adjacent lot.

The respondent university, a judgment creditor of the applicant's former partner, opposed the application.

The court dismissed the application, finding that previous court orders had nullified the applicant's interest in Osprey and granted the university enforcement rights against it.

The court also held that the mortgagee was entitled to pursue its remedy against the adjacent lot, and that the equitable doctrine of marshalling would have compelled this result to protect the university's unsecured interest.

Following the dismissal of the plaintiff's claim after a mini-trial, the successful defendant sought costs on a substantial indemnity basis.

The plaintiff argued that the parties should bear their own costs or that she should receive a net costs award due to her costs of resisting a prior summary judgment motion.

The court rejected the plaintiff's argument, noting the defendant was entirely successful.

However, the court declined to award substantial indemnity costs due to the defendant's failure to provide a proper accounting as a fiduciary and his deceptive conduct regarding property valuation.

Costs were awarded to the defendant on a partial indemnity scale fixed at $58,443.75.

The plaintiff, acting through her guardian of property, brought an action against her daughter for the recovery of funds misappropriated while the daughter acted as her attorney for property.

The court found that the defendant failed to keep proper accounts, commingled funds, and used the incapable person's money for her own benefit, breaching her fiduciary duty under the Substitute Decisions Act.

The court awarded damages of $86,649.57, representing 75% of the unaccounted funds plus the costs of a previous guardianship application, and ordered the return of any remaining funds held in trust.

The court invoked its inherent jurisdiction to hold a hearing to determine whether the plaintiff should be declared a vexatious litigant under s. 140 of the Courts of Justice Act.

The plaintiff had filed multiple similar claims against the same defendants arising from a residential eviction, all of which were dismissed as abuses of process.

The plaintiff failed to attend the hearing and instead filed an irregular motion seeking the judge's recusal.

The court dismissed the recusal motion, found the plaintiff's third action to be an abuse of process, and declared the plaintiff a vexatious litigant, prohibiting him from instituting or continuing any proceedings without leave of the court.

Following the successful summary judgment motion dismissing the plaintiff's claim, the defendant Town of Hanover sought costs of $43,447.34.

The self-represented plaintiff opposed the costs award.

The court applied Rule 57.01, noting the defendant's unaccepted offer to settle for a dismissal without costs, the complexity of the motion, and the proportionality of the costs claimed.

The court awarded the defendant its full costs claimed.

The guardians of an incapable person moved to amend a management plan to allow for the sale of a property co-owned by the incapable person and her spouse.

The spouse, a non-party who had previously financially exploited the incapable person, opposed the sale indirectly through the incapable person.

The court found the incapable person's opposition was unreliable and the product of the spouse's influence.

The court granted the motion, ordering the sale of the property as it was in the incapable person's best interests.

The court also ordered costs on a full indemnity basis to be paid from the proceeds of the sale prior to distribution, effectively making the non-party spouse liable for half the costs due to his gross misconduct.

The appellant physician appealed a decision of the Health Professions Appeal and Review Board confirming the revocation of his hospital privileges at Windsor Regional Hospital.

The hospital revoked his privileges due to his disruptive behaviour and refusal to comply with a new 'Model of Care' for renal patients.

The Divisional Court dismissed the appeal, finding that the Board's reasons were sufficient and that there was ample evidence of the appellant's disruptive conduct, which undermined the hospital's policies and staff, justifying the revocation of his privileges.

The accused was charged with three counts of sexual offences against his two stepdaughters.

The allegations spanned several years and involved both touching and intercourse.

The accused testified and emphatically denied the allegations, providing a detailed and credible account of events.

Applying the W.(D.) framework, the court accepted the accused's exculpatory evidence under the first prong, finding him entirely credible.

The court also found that even if the accused's evidence was not fully accepted, it raised a reasonable doubt under the second prong, and the frailties in the Crown's evidence raised a reasonable doubt under the third prong.

The accused was acquitted on all counts.

The plaintiff brought an action against the defendant for fraudulent diversion of equity, loss of opportunity, and punitive damages arising from two transfers of her matrimonial home.

The parties had entered into an unwritten management plan where the defendant held the property in trust to secure better financing while the plaintiff continued to reside there.

The court found that a fiduciary relationship existed, but the defendant did not breach any fiduciary duty or fraudulently divert equity.

The defendant provided a full and proper accounting of the funds, and the plaintiff failed to prove any damages.

The action was dismissed.

The self-represented appellant appealed a Landlord and Tenant Board decision terminating his tenancy for allegedly threatening another tenant.

The landlord did not oppose the appeal, provided no costs were ordered against it.

The Divisional Court granted the appeal and ordered a new hearing before a differently constituted panel of the Board.

The Court declined to award costs to the appellant, noting that self-represented litigants are only entitled to costs if they can demonstrate a lost opportunity to earn income, which the appellant failed to do.

The appellant appealed a Licence Appeal Tribunal decision and a reconsideration decision denying her claim for accident benefits for chiropractic treatment.

She argued the adjudicator breached procedural fairness and failed to provide sufficient reasons by not explicitly referring to a medical report from her orthopedic surgeon.

The Divisional Court dismissed the appeal, finding that an adjudicator is not required to refer to every piece of evidence in their reasons, and the reasons provided were detailed and demonstrated a firm grasp of the evidentiary record.

The appellant appealed his conviction for sexual assault.

The incident occurred after the appellant, the complainant, and her partner returned to a residence after drinking.

The trial judge rejected the appellant's testimony as illogical and accepted the complainant's evidence.

On appeal, the appellant argued the trial judge erred in applying the W.(D.) principles, assessing credibility, and refusing an adjournment for a Seaboyer application.

The Superior Court of Justice dismissed the appeal, finding the trial judge's factual conclusions were supported by the evidence and there were no errors of law.

The self-represented appellant brought a motion to a panel of the Divisional Court under s. 21(5) of the Courts of Justice Act to set aside an order of a single judge.

The single judge had dismissed her motion to extend the time to appeal a finding that her family law claims were statute-barred.

The panel found no error in the single judge's conclusion that the date of separation was res judicata and that the limitation period under s. 7(3) of the Family Law Act had expired.

The motion was dismissed with costs awarded to the respondent.

The applicant physician sought judicial review of an interim order made by the College of Physicians and Surgeons of Ontario restricting her practice pending an investigation into her issuance of COVID-19 vaccine exemptions.

The applicant challenged a specific term requiring her to consent to the College accessing her OHIP billing records to monitor compliance.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding that the College had sufficient evidence of risk to patients and the public, and that the OHIP monitoring term was a reasonable measure to ensure compliance with the practice restrictions.