Katherine E. Swinton

Following an appeal in an estate matter, the respondent sought costs of $43,630.71 on a substantial indemnity basis, payable immediately rather than from the appellant's share of the estate.

The Divisional Court found no reprehensible conduct to justify substantial indemnity costs and fixed costs at $28,000 on a partial indemnity basis.

The court ordered the costs to be paid forthwith due to uncertainty regarding the timing of the estate's distribution.

The College of Physicians and Surgeons of Ontario sought costs following the dismissal of an application for judicial review and related motions brought by a physician and her patients.

The applicants argued they were public interest litigants and should pay no costs, or alternatively, reduced costs.

The Divisional Court rejected the public interest litigant argument, finding the physician was pursuing private and pecuniary interests in a dispute with her regulator, and the patients lacked standing.

The court ordered the patients to pay $8,000 and the physician to pay $18,000 in all-inclusive costs.

The appellant appealed a Licence Appeal Tribunal decision denying his request for a catastrophic impairment designation, income replacement benefits, and physiotherapy following a motor vehicle accident.

The appellant argued the Vice-Chair erred by failing to include a contingency for future surgery in his whole person impairment rating and by ignoring expert evidence.

The Divisional Court dismissed the appeal, confirming that whole person impairment is assessed based on the claimant's condition at the time of the hearing without contingencies for future deterioration or surgery.

The applicant, a nursing student, sought judicial review of a university Senate Appeals Committee decision upholding his failing grade in a clinical practicum.

The applicant was failed after completing only 52 of 419 required hours, shortly after raising concerns about his preceptor's standards of practice.

The Divisional Court granted the application, finding that the evaluation, grade review, and appeal processes were procedurally unfair and unreasonable.

The university failed to follow its own syllabus, denied the applicant an opportunity to respond to credibility issues, and provided inadequate reasons.

The decisions were quashed and the matter remitted to the nursing school.

The applicant, a tenured university professor, sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing his discrimination application as out of time, and a subsequent decision denying reconsideration.

The HRTO had found that the applicant's allegations regarding a workplace investigation did not form part of a 'series of incidents' with earlier alleged discriminatory acts by a dean, and thus the application was filed beyond the one-year limitation period.

The Divisional Court applied the reasonableness standard of review and upheld the HRTO's decisions, finding that the HRTO reasonably concluded the investigation was discrete and separate from the earlier incidents, and that the applicant failed to provide a good faith explanation for the delay.

The appellant appealed an order approving the passing of accounts by the estate trustee of their late brother's estate.

The appellant argued the audit judge erred in the standard of recordkeeping required, specifically regarding the absence of written receipts for some expenses.

The Divisional Court dismissed the appeal, finding the audit judge correctly applied the standard of care of a person of ordinary prudence and reasonably accepted the trustee's sworn explanations and corroborating evidence.

The court also upheld the audit judge's decisions regarding the distribution of artwork, the refusal to order a trial of late-raised issues, and denied leave to appeal the costs order.

The appellant appealed a motion judge's decision that there was no limitation period on the respondent's right to enforce a 1999 construction lien judgment due to the transitional provisions of the Limitations Act, 2002.

The respondent cross-appealed on issues including the vacating of the lien, characterization of set-off claims, and costs.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the transitional provisions because the relevant 'proceeding' was the enforcement action, not the original suit.

The cross-appeal was allowed only to correct the formal order, removing findings of fact improperly included as orders.

The applicants sought judicial review of the Patient Ombudsman's decision to initiate an investigation into their long-term care home's handling of the COVID-19 pandemic.

The applicants argued that section 13.3(5) of the Excellent Care for All Act precluded the investigation because the matter was already the subject of other proceedings, including a provincial commission, an Ontario Ombudsman investigation, and class actions.

The Divisional Court agreed, finding that the Patient Ombudsman unreasonably interpreted the statute and was prohibited from proceeding.

The application for judicial review was granted and the decision to investigate was quashed.

The applicant, a municipal councillor, sought judicial review of an Integrity Commissioner's report finding she breached the Code of Conduct, and the municipal council's subsequent decision to suspend her remuneration and restrict her email communications.

The Divisional Court upheld the Integrity Commissioner's findings that the applicant's communications with the Chief Administrative Officer were abusive and breached the Code.

However, the Court found the council's decision to restrict the applicant from emailing all municipal staff for 14.5 months was overbroad, punitive, and unreasonable.

The application was granted in part, quashing the email restriction.

The applicant sought judicial review of an arbitration decision that excluded temporary teachers (those without Ontario College of Teachers membership) from the occasional teachers' bargaining unit.

The Divisional Court dismissed the application, finding that the arbitrator did not breach procedural fairness, as the parties were invited to make submissions on the determinative issue.

The Court also held that the arbitrator's interpretation of the School Boards Collective Bargaining Act, 2014, requiring occasional teachers to be on the board's roster to be included in the bargaining unit, was reasonable.

The landlords appealed and the tenant cross-appealed a decision of the Landlord and Tenant Board regarding an illegal lock-out and harassment.

The landlords abandoned their appeal.

On the cross-appeal, the tenant argued the Board erred in law by failing to address his claim for general damages for pain and suffering, despite finding compelling evidence of harassment and illegal lock-out.

The Divisional Court agreed, finding the Board's failure to address the claim rendered the decision incapable of appellate review.

The Court allowed the cross-appeal and ordered the landlords to pay $5,000 in general damages.

The appellant appealed a decision of the Condominium Authority Tribunal regarding four requests for condominium records under section 55 of the Condominium Act.

The Divisional Court dismissed the appeal, finding that the appellant failed to identify any error of law, as required by section 1.46(2) of the Act, and instead challenged findings of fact and mixed fact and law.

The court upheld the Tribunal's findings that there was no refusal to provide records without reasonable excuse and awarded partial indemnity costs of $8,500 to the respondent.

The tenant appealed orders of the Landlord and Tenant Board.

The Board had initially ordered eviction for rent arrears, but upon review, allowed the landlord to withdraw its application after the tenant paid the arrears.

The tenant argued the landlord could not withdraw the application after the hearing started.

The Divisional Court dismissed the appeal, finding no error of law as the Board had granted permission for the withdrawal, and noting the appeal was moot since there was no longer a live controversy between the parties.

The moving party brought a motion for leave to appeal an order dated September 19, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The applicant physician sought judicial review of decisions by the College of Physicians and Surgeons of Ontario (CPSO) to investigate her, impose interim restrictions, and subsequently suspend her medical license for issuing unjustified COVID-19 vaccine exemptions.

A group of anonymous patients also sought judicial review, arguing the investigation infringed their privacy and autonomy.

The Divisional Court quashed the patients' application for lack of standing.

The court dismissed the physician's application, finding the challenge to the investigation decision premature and the interim restriction and suspension decisions reasonable given the immediate risk to patient safety.

The court also granted the CPSO's motion for a publication ban to protect the identities of complainants.

The appellants appealed a trial judgment awarding the respondent $292,000 in damages for oppression under the Business Corporations Act.

The trial judge found the appellant engaged in oppressive conduct by failing to keep proper financial records, using company funds for personal expenses, and misappropriating funds through an undisclosed arrangement with another company.

The Divisional Court upheld the findings of oppression and the damages awarded for loss of profits and personal expenses.

However, the court allowed the appeal in part, setting aside the $182,000 award for loss of business value, finding it was an error in principle because the parties had agreed to wind up the business and distribute net assets, making book value or fair market value irrelevant.

The applicant sought judicial review of a decision by the Office of the Independent Police Review Director (OIPRD), which found insufficient evidence that police officers committed misconduct during an interaction that ended with the applicant's daughter falling to her death from a balcony.

The applicant alleged excessive force, neglect of duty, deceit, and discreditable conduct.

The Divisional Court dismissed the application, finding the OIPRD's investigation and conclusions were reasonable, transparent, and justified based on the evidence.

The appellant insurer appealed a License Appeal Tribunal reconsideration decision that ordered it to pay for a psychological assessment treatment plan because it failed to provide a timely denial notice under s. 38(8) of the Statutory Accident Benefits Schedule.

The Divisional Court allowed the appeal, holding that s. 38(11)2 only requires an insurer to pay for goods and services that are actually incurred during the period before a proper notice is given.

The court found that requiring payment for non-incurred expenses would result in a consumer windfall contrary to the purpose of the legislation.

The reconsideration decision was set aside and the decision of first instance was reinstated.

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.