John G. J. O'Driscoll

The respondents/plaintiffs sought costs on a substantial indemnity basis following the dismissal of the applicants/defendants' motion for leave to appeal.

The applicants/defendants argued that costs should be fixed on a partial indemnity basis, noting that the motion was interlocutory and not unduly complex.

The court agreed with the applicants/defendants and fixed costs on a partial indemnity basis at $5,000 plus disbursements and GST, reflecting the everyday range for leave to appeal applications in the Divisional Court.

The plaintiff sought leave to appeal an order requiring it to post $680,000 as security for costs on a substantial indemnity scale in favour of the defendant, its former franchise counsel and director.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the underlying order and concluding that the proposed appeal did not involve matters of broad public importance extending beyond the interests of the immediate parties.

The appellant executor appealed a trial judgment awarding the respondent $75,000 in dependant's support under the Succession Law Reform Act.

The trial judge found the respondent was a 'spouse' who had continuously cohabited with the deceased for at least three years prior to his death, and that her evidence was sufficiently corroborated.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding cohabitation or the quantum of support awarded.

The tenant brought a motion to vary an order that set conditions for his appeal, specifically the requirement to pay rent arrears and ongoing rent.

The tenant had not paid any arrears and his appeal had previously been dismissed for non-compliance.

As the tenant continued to refuse to pay the arrears he admitted were owing, the Divisional Court found no merit in the motion and dismissed it, awarding costs to the landlord.

The appellant appealed a jury verdict assessing her general damages at $35,000 and future loss of income at zero following a rear-end motor vehicle collision.

The appellant argued that questions posed by the jury during deliberations showed they considered irrelevant matters, and sought a new trial or reassessment of damages.

The Divisional Court dismissed the appeal, finding that the trial judge's recharge cured any potential issues with the jury's questions, and that the jury's verdict on damages was not so unreasonable and unjust as to warrant appellate intervention.

The appellants appealed a decision of the Licence Appeal Tribunal directing the revocation of their motor vehicle inspection station and mechanic's licences.

The Director alleged that false statements were made in numerous safety standards certificates and that inspections were incompetently performed.

The Divisional Court dismissed the appeal, finding that the evidence accepted by the Tribunal provided clear and cogent proof to support the Director's proposed action.

The applicants, parents of children at Arthur District High School, sought judicial review of the Upper Grand District School Board's decision to close the school.

They argued the Board failed to comply with statutory duties and its own accommodation review policy, thereby denying the community meaningful participation in the decision-making process.

The Divisional Court dismissed the application, finding that the Board had considered numerous alternatives, provided necessary information, and afforded the community a fair opportunity to participate in the consultation process.

At the opening of an application for judicial review regarding a coroner's inquest, the applicants brought a motion to remove the law firm representing the respondent Coroner.

The firm had previously done corporate legal work for a corporation that had standing at the inquest.

Although there was no actual conflict of interest, the Divisional Court granted the motion and removed the firm based on the need to maintain public confidence in the administration of justice and avoid any appearance of impropriety.

The plaintiffs in a personal injury action appealed an order requiring their expert witnesses to answer questions regarding the foundation and assumptions of their opinions during cross-examination on affidavits filed in response to a summary judgment motion.

The Divisional Court dismissed the appeal, finding no error in the motions judge's ruling that cross-examination on an expert's affidavit should be subject to the same rules as other affiants and is not strictly limited to the four corners of the affidavit.

The applicants sought leave to appeal to the Divisional Court from a motions judge's orders extending a certificate of pending litigation and requiring funds from a property to be paid into court.

The underlying action involved allegations of a fraudulent conveyance and a defective notice of sale under the Mortgages Act following an assignment of a mortgage.

The Divisional Court dismissed the application for leave to appeal, finding no reason to doubt the correctness of the motions judge's orders, no conflicting decisions, and no issue of general or public importance.

The Registrar of the Motor Vehicle Dealers Act appealed a tribunal decision.

The Divisional Court adjourned the hearing, directing the parties to provide the complete record of the respondent's prior criminal appeal and written submissions on whether the tribunal impermissibly allowed a collateral attack on those criminal convictions.

The appellant motor vehicle dealer sought to introduce fresh evidence on appeal regarding actual damage to vehicles.

The Divisional Court rejected the proposed evidence, applying the Sengmueller test.

The court found the evidence was not relevant to the core issue of non-disclosure of acquisition documents, was readily available at the time of the original hearing, and would not have affected the tribunal's result.

The applicants sought judicial review of a decision by the Environmental Review Tribunal to quash one of their grounds of appeal.

The tribunal had previously granted leave to appeal a Director's order regarding nickel contamination in soil on only one of eight proposed grounds.

The Divisional Court dismissed the application for judicial review, finding that the tribunal had the jurisdiction to limit the scope of the appeal to the ground on which leave was granted.

The court also held that the application was premature, as it challenged an interlocutory procedural decision, and that the tribunal's decision was reasonable.

The appellant tenant brought a motion to admit fresh evidence on appeal.

The Divisional Court dismissed the motion, finding that the evidence was readily available at the time of the original hearing and that the tenant had chosen not to call available witnesses.

Furthermore, the court held that the fresh evidence would not have been conclusive of the issue, applying the test from Sengmueller v. Sengmueller.

The applicant judges' association sought judicial review of the Ontario government's decision to reject the pension recommendations of the Fourth Triennial Remuneration Commission.

The government had retained independent actuaries to cost the recommendations before rejecting them.

The Divisional Court held that the actuarial affidavits were admissible, as the government was entitled to seek expert advice to justify its decision.

The court found that the government was not required to return to the Commission before making its decision, and that its rejection of the recommendations met the constitutional standard of simple rationality.

The plaintiffs sought to certify a class action on behalf of indirect purchasers (homeowners and end users) alleging that the defendants engaged in a price-fixing conspiracy regarding iron oxide pigment used in construction materials.

The application judge certified the action.

The defendants appealed.

The Divisional Court allowed the appeal and set aside the certification order, finding that a class proceeding was not the preferable procedure.

The court held that the plaintiffs faced insurmountable problems of proof regarding whether the alleged overcharge was passed on to them through the chain of distribution, making the action unmanageable and inappropriate for aggregate damages assessment.

The City of Kingston sought leave to appeal a decision of the Ontario Energy Board regarding the renewal of Union Gas Ltd.'s franchise to operate a gas distribution system in the former Township of Pittsburgh.

The City also sought a stay of the OEB's order and an expedited hearing.

The court held that under the Ontario Energy Board Act, 1998, the City had a statutory right of appeal without needing leave, as its provisions overrode the leave requirement in the Municipal Franchises Act.

The court granted a partial stay of the OEB's order pending the appeal but denied the request for an expedited hearing before a single judge.

The plaintiffs and a non-party former employee appealed a Master's order granting the defendant leave to examine two non-party former employees for discovery.

The Master found the former employees had information relevant to a material issue and fashioned a remedy to protect them, including ordering the defendant to pay for their counsel.

The Divisional Court dismissed the appeals, finding the Master made no error and fashioned a commonsense solution.

The self-represented moving party sought an extension of time and leave to appeal an interlocutory child support order to the Divisional Court.

The court noted that the moving party had previously attempted to appeal to the Court of Appeal and was advised he was in the wrong court.

Finding no explanation for the delay in seeking leave within the required seven-day period under Rule 62.02(2), the court dismissed the application to extend time and quashed the application for leave to appeal.

The purchaser of a new home claimed compensation from the Ontario New Home Warranty Program, alleging she should have received legal title to a side yard rather than an easement.

The Program denied the claim, but the Commercial Registration Appeal Tribunal ordered compensation under s. 14(1)(a) of the Ontario New Home Warranties Plan Act.

The Program appealed.

The Divisional Court allowed the appeal, holding that s. 14(1)(a) protects purchasers from financial loss when a vendor fails to complete a contract, and does not apply to alleged title deficiencies after a transaction has closed.