Lise G. Favreau

This decision addresses the issue of costs following the dismissal of Estates Associates Inc.'s claim against the McCowan defendants and Bryon C. Cohen.

The defendants sought substantial indemnity costs, citing unsubstantiated fraud allegations and offers to settle.

The plaintiff, represented in person, argued the amounts were excessive.

The court awarded partial indemnity costs, finding that while the case was complex, the allegations did not warrant substantial indemnity, and Rule 49.10(2) did not apply to award substantial indemnity to a successful defendant against an unsuccessful plaintiff.

The landlord brought a motion to quash the tenant's appeal from a Landlord and Tenant Board eviction order.

The tenant argued the Board erred in its application of s. 83(3) of the Residential Tenancies Act regarding serious breaches and retaliation.

The Divisional Court found the appeal was manifestly devoid of merit as it raised only issues of fact or mixed fact and law, not questions of law.

The court also found the appeal was an abuse of process due to the tenant's failure to pay rent and delay in perfecting the appeal.

The motion to quash was granted.

The Municipal Property Assessment Corporation (MPAC) appealed a decision of the Assessment Review Board regarding the valuation of a residential property.

The Board had found that MPAC failed to meet its burden of proving the property's current value and, as a result, fixed the assessment at the last uncontested value rather than determining the current value.

The Divisional Court allowed the appeal, holding that the Board's approach was contrary to the Assessment Act, which strictly requires the Board to determine the current value of the property.

The matter was remitted back to the Board.

The tenant appealed a Landlord and Tenant Board order terminating her tenancy for non-payment of rent and damages.

The tenant brought a motion to extend the time to perfect her appeal, arguing the Board failed to accommodate her disabilities by denying an adjournment and a request to participate by telephone.

The landlord brought a cross-motion to quash the appeal as manifestly devoid of merit.

The Divisional Court dismissed the landlord's motion, finding the appeal raised a valid question of law regarding procedural fairness.

The court granted the tenant's motion to extend the time to perfect the appeal, but on the condition that she pay all outstanding and ongoing rent.

The appellant appealed a Small Claims Court judgment awarding him $127.97 for an overcharge on a vehicle maintenance package, arguing the trial judge should have found the overcharge was deliberate and awarded punitive damages.

The Divisional Court dismissed the appeal, finding it was commenced well beyond the 30-day deadline and the appellant did not meet the test for an extension of time.

Furthermore, the court found no palpable and overriding error in the trial judge's factual finding that the overcharge was an unintentional error.

The applicant, an internationally trained dentist, sought judicial review of a decision by the National Dental Examining Board's Appeals Committee dismissing his appeal of a failing grade on his clinical skills assessment.

The applicant argued the Committee breached its By-Laws and procedural fairness by failing to hold an oral hearing and failing to provide a post-evaluation review.

The Divisional Court dismissed the application, finding the Committee's decision reasonable as the applicant failed to provide evidence of a procedural irregularity that would trigger an oral hearing, and failed to prove he was denied a post-evaluation review.

The Canadian Civil Liberties Association (CCLA) brought a motion for leave to intervene as a friend of the court in an appeal from an order certifying a class action against Ontario.

The underlying class action alleges negligence and Charter breaches in the provision of services to adults with developmental disabilities.

On appeal, Ontario argues that the recently enacted Crown Liability and Proceedings Act, 2019 provides immunity from the negligence claims.

The CCLA sought to intervene to argue that Ontario's expansive interpretation of the Act's immunity provisions violates section 96 of the Constitution Act, 1867.

The court granted the motion, finding that the CCLA would make a useful and distinct contribution to a matter of public importance without causing injustice or undue delay to the parties.

The applicant, a former Auditor General for the City of Oshawa, brought an application for judicial review seeking to quash a 2013 City Council resolution and expunge an investigator's report.

The application was commenced more than five years after the resolution was passed.

The Divisional Court dismissed the application for delay, finding the delay was lengthy, lacked a reasonable explanation, and caused prejudice to the City given the one-year statutory limitation period for quashing municipal resolutions.

The applicant retirement home sought an order in the nature of mandamus to compel the Sheriff to enforce a Landlord and Tenant Board eviction order against a resident with severe physical disabilities.

The Sheriff had refused to enforce the order due to health and safety concerns and the lack of a safe alternative location for the resident.

The Divisional Court granted the application, finding that the Sheriff has a mandatory statutory duty to enforce eviction orders and that the balance of convenience favoured enforcement, given the resident's failure to cooperate in finding alternative accommodations.

The Sheriff was given a delayed deadline to carry out the eviction.

The applicant, a real estate agent, sought judicial review of a decision by the Real Estate Council of Ontario (RECO) Appeals Committee dismissing his motion for an extension of time to perfect his appeal.

The respondent conceded that the Appeals Committee's decision breached procedural fairness because the Chairperson had previously presided at pre-hearing conferences.

Applying the Supreme Court's guidance in Vavilov, the Divisional Court declined to remit the matter back to the tribunal, finding that granting the extension of time was the inevitable outcome.

The court quashed the decision and granted the extension of time.

The appellant appealed a decision of the Superior Court which upheld an assessment officer's decision regarding solicitor's fees.

The appellant argued the assessment officer erred by double-counting factors in the Cohen v. Kealey analysis and in finding the underlying case was of average complexity.

The Divisional Court dismissed the appeal, finding no palpable and overriding error and noting that complexity was not a substantial factor since the solicitor accomplished nothing of value for the client.

The appellant appealed a summary judgment decision dismissing its defamation claims against the respondents.

The appellant's principal had publicly demanded an explanation for the termination of a property maintenance contract, prompting harsh words from the respondents' property manager.

The Divisional Court upheld the motions judge's finding that the defence of consent applied, as the impugned words were responsive to the appellant's inquiry.

The court also found no error in the costs award below.

The appeal was dismissed with costs.

The plaintiff, Janeric Engineering Inc., sought summary judgment for $400,000 plus interest based on a promissory note given by the defendant, 2496110 Ontario Inc., in the context of an asset purchase agreement.

The defendant argued that conditions precedent for payment were not met and asserted a right of setoff.

The court granted summary judgment, finding the promissory note enforceable as amended by an addendum, dismissing the defendant's arguments regarding banking documents and the right of equitable setoff against a promissory note.

The court also denied a stay of judgment as no counterclaim was filed.

The appellants appealed the dismissal of their motion to certify a class proceeding involving product liability claims against the manufacturers of an inferior vena cava (IVC) filter.

The Divisional Court upheld the motion judge's finding that the pleadings failed to disclose a reasonable cause of action for defective design because they did not identify a specific alternative design.

However, the court allowed the appeal in part, finding that regulatory advisories provided 'some basis in fact' to certify the common issue of whether the defendants breached their duty to warn learned intermediaries of the risks associated with the filters.

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the respondent owner's notice of termination triggered the 45-day deadline for the appellant to file its claim for lien, equating termination with 'abandonment' under the Construction Lien Act.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, and an owner's unilateral termination does not automatically constitute abandonment by the contractor.

The claim for lien was therefore registered in time.

The appellant challenged his late brother's will but later abandoned the claim.

The respondents (estate trustees) obtained summary judgment on a counterclaim for damages representing CRA interest and penalties incurred by the estate due to the litigation delay, or alternatively, as an award of costs.

On appeal, the Divisional Court set aside the judgment, holding that commencing litigation is not an actionable wrong unless it meets the strict test for the tort of abuse of civil process, which was neither pleaded nor proved.

The court also held that estate administration expenses, such as CRA penalties, cannot be awarded as legal costs.

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the owner's notice of termination constituted 'abandonment' of the contract under s. 31(2) of the Construction Lien Act, triggering the 45-day period to register a lien.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, either subjectively or objectively.

A unilateral termination notice by the owner does not force abandonment by the contractor, especially where the contractor remains ready, willing, and able to complete the work and settlement discussions are ongoing.

The Employer applied for judicial review of an Ontario Labour Relations Board decision certifying the Union as the bargaining agent for heavy equipment operators.

The Employer argued it was denied procedural fairness when the Board found its pleadings deficient regarding the status of 18 employees and refused to allow amendments.

The Divisional Court dismissed the application, finding no denial of procedural fairness as the Board applied established pleading standards for construction industry status disputes.

The Court also held the Board's refusal to allow amendments was reasonable due to the prejudice the delay would cause the Union.

The appellant property manager appealed an interlocutory order dismissing its motion to strike a third party claim brought by the respondent developers.

The respondents sought contribution and indemnity from the appellant for alleged construction deficiencies and maintenance failures at a condominium.

The appellant argued the third party claim should be struck because the respondents did not assert an independent cause of action against it.

The Divisional Court dismissed the appeal, holding that a defendant does not need an independent cause of action against a third party to bring a claim under the Negligence Act, provided the defendant is exposed to joint and several liability for damages caused to the plaintiff.

The Child and Family Services Review Board brought a motion to quash an application for judicial review commenced by the Toronto District School Board regarding a student's suspension and expulsion.

The motion was brought on the grounds of mootness and undue delay.

The Divisional Court granted the motion, finding that the school board's 23-month delay in commencing and perfecting the application was excessive, unexplained, and prejudicial to the tribunal.

Furthermore, the court held that the underlying dispute had been settled, rendering the application moot, and declined to exercise its discretion to hear the case.