Katherine E. Swinton

The appellants appealed a decision of the Normal Farm Practices Protection Board that denied their claim for over $1.2 million in costs following a lengthy proceeding.

The underlying application concerned a nuisance claim against a greenhouse and anaerobic digester operated by a court-appointed receiver.

The Board had found that both parties engaged in unreasonable conduct and declined to award costs to either side.

The Divisional Court dismissed the appeal, finding no error in principle or palpable and overriding error in the Board's discretionary costs decision.

The defendants brought a motion for leave to appeal the order of Skarica J. dated February 4, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party, payable jointly and severally by the moving parties.

The moving party sought leave to appeal the order of Dow J. dated March 10, 2020.

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

The appellant, Enbridge Gas Inc., appealed a decision of the Ontario Energy Board setting April 1, 2019, as the effective date for a natural gas rate increase, arguing the date should have been January 1, 2019.

The appellant contended the OEB failed to ensure rates were just and reasonable at all times and relied on irrelevant considerations, such as the timing of the application.

The Divisional Court dismissed the appeal, finding the OEB made no error of law and properly exercised its broad discretion to set just and reasonable rates by considering the timing of the application and the impact of retroactive rate changes on consumers.

The applicant union sought judicial review of three Ontario Labour Relations Board decisions regarding the employer's refusal to disclose a commercial Master Services Agreement (MSA) with a third party.

The union alleged the refusal violated the employer's duty to not interfere with union representation and the duty to bargain in good faith under the Labour Relations Act.

The Divisional Court dismissed the application, finding the Board's decisions to deny full disclosure, find the initial bad faith bargaining complaint premature, and later order only partial disclosure based on specific bargaining concessions, were all reasonable and consistent with established labour jurisprudence.

The moving parties sought to object to the responding parties including their factums from the court below in their motion record for leave to appeal.

The Divisional Court issued a supplementary endorsement clarifying that anything before the court below may form part of the record on a motion for leave to appeal, and there was nothing improper about including the factums.

The court declined to reconsider its decision on the motion for leave to appeal, noting that its decision did not turn on the responding parties' factums.

Nation Rise sought judicial review of the Minister's decision to revoke its Renewable Energy Approval for a wind farm project.

The Minister had revoked the approval based on concerns about harm to bat maternity colonies, an issue not raised by the parties before the Environmental Review Tribunal or on appeal.

The Divisional Court quashed the Minister's decision, finding it unreasonable because the Minister lacked statutory authority to raise new issues on appeal, applied the wrong legal test by using a precautionary approach, and misapprehended the evidence.

The Court also found the Minister breached procedural fairness by failing to give notice of the new issue and denying the parties an opportunity to make submissions on remedy.

The ERT's approval of the project was reinstated.

The moving parties brought a motion for leave to appeal two interlocutory orders.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

The applicant, a police officer, sought judicial review of a decision by the Ontario Civilian Police Commission upholding a finding of misconduct for the unlawful arrest of a videographer during the G20 summit.

The applicant argued the Commission erred in its standard of review and that the Hearing Officer's reasons were inadequate.

The Divisional Court dismissed the application, finding that the Commission reasonably concluded the reasons were adequate for appellate review and that the finding of misconduct was reasonable given the lack of good and sufficient cause for the arrest.

The appellant appealed a decision of the Ontario Energy Board imposing a $155,000 administrative penalty for contraventions of the Energy Consumer Protection Act, 2010 related to the marketing of energy contracts.

On appeal, the appellant argued for the first time that the Board lost jurisdiction because the penalty was imposed outside the two-year limitation period in s. 112.5(2) of the Ontario Energy Board Act, 1998.

The Divisional Court declined to exercise its discretion to hear the new limitation period issue, finding it would benefit from the specialized tribunal's interpretation and required factual findings.

The Court also dismissed the appellant's arguments that the Board misapprehended evidence and improperly found systemic training deficiencies, concluding there were no errors of law or jurisdiction.

The applicants, the City of Toronto and the Association of Municipalities of Ontario, brought a motion for an interim injunction to stop an arbitration between the respondents, Resource Productivity & Recovery Authority and Stewardship Ontario.

The applicants argued that the arbitration was not the proper forum to challenge a funding obligation decision and sought to have the matter determined by judicial review.

The Divisional Court dismissed the motion, finding that the applicants failed to demonstrate irreparable harm and that the balance of convenience favoured allowing the arbitration to proceed as scheduled.

The appellant foreign corporations appealed a Master's order dismissing their motion to stay or dismiss the action for lack of territorial jurisdiction.

The Master found a real and substantial connection to Ontario based on a good arguable case that an oral contract for a 5% ownership interest was made and breached in Ontario.

The Divisional Court found no palpable and overriding error in the Master's characterization of the dispute or her conclusion, and dismissed the appeal.

The defendants, two American corporations, brought a motion under Rule 21.01(3)(a) to dismiss an oppression claim for lack of subject matter jurisdiction, arguing they were not governed by the Ontario Business Corporations Act (OBCA).

The plaintiffs alleged an oral agreement for a 5% ownership interest in the defendant companies, asserting they were beneficial owners and the defendants were affiliates of Ontario corporations controlled from Ontario.

The court found that the OBCA's definition of "affiliate" could include foreign corporations controlled by the same person as an Ontario corporation, and that the Ontario Superior Court had jurisdiction over the oppression claim, as well as other claims for breach of contract and tracing.

The motion to dismiss was denied.

The applicant estate sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision denying survivor benefits following the death of a firefighter from a heart attack.

The Tribunal found that the statutory presumption for firefighters did not apply because the deceased had not attended a 'fire scene' within 24 hours of the heart attack, and that the injury did not otherwise arise out of and in the course of employment.

The Divisional Court dismissed the application, holding that the Tribunal's decision and its subsequent refusal to reconsider were reasonable and supported by the evidence and applicable policies.

The appellants brought a motion to stay an order directing the sale of a co-owned rental property pending their appeal.

The court applied the RJR-MacDonald test for a stay.

While finding a serious issue regarding procedural fairness and the application judge's failure to consider the co-ownership agreement, and acknowledging potential irreparable harm regarding capital gains tax, the court concluded the balance of convenience favoured the respondents due to the appellants' delay in pursuing the appeal.

The motion for a stay was dismissed, save for a consent stay on the immediate payout of net proceeds.

The appellant tenant appealed a decision of the Landlord and Tenant Board refusing to set aside an order terminating her tenancy with the respondent landlord.

The termination order was issued after the tenant failed to pay $100 per month towards rent arrears as previously ordered by the Board.

The Divisional Court dismissed the appeal, finding that the tenant's disputes regarding the amount of arrears and maintenance issues were not questions of law, and that she could not raise the issue of lack of notice for the first time on appeal.

The tenant appealed an eviction order from the Landlord and Tenant Board, arguing he did not know disconnecting his fire alarm was illegal and that he missed the initial hearing because his agent cancelled.

The Divisional Court dismissed the appeal, finding no error of law.

The court noted the tenant failed to raise the knowledge issue before the Board and had a reasonable opportunity to participate in the initial hearing.

The appellant rented a unit and subsequently rented a bedroom in that unit to the respondent.

The appellant locked the respondent out of the unit without an eviction order.

The Landlord and Tenant Board found the respondent was a subtenant and awarded damages for unlawful eviction.

On appeal, the Divisional Court found the Board erred in its application of the subtenancy provisions, as the appellant had not vacated the unit for a specified term.

However, the Court upheld the Board's remedial order, finding that the Residential Tenancies Act still applied because the appellant met the broad statutory definition of a landlord and the respondent met the definition of a tenant.

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.