Katherine E. Swinton

The appellant, an occupational therapist, appealed a decision of the Discipline Committee finding her guilty of professional misconduct, suspending her certificate of registration for four months, and ordering her to pay $26,000 in costs.

The misconduct arose from her failure to successfully complete an ethics course mandated by a previous disciplinary order, as she failed the course due to plagiarism in her final essay.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding that the Committee reasonably concluded she committed professional misconduct and that the penalty and costs awards were within a reasonable range and discretionary bounds.

The appellant brought a motion to set aside the Registrar's dismissal of his appeal for delay.

The court considered the factors for setting aside a dismissal, finding the appellant had a timely intention to appeal, moved quickly to set aside the dismissal, and caused no prejudice to the respondents.

The court also confirmed it had jurisdiction to hear the appeal under s. 19(1.2) of the Courts of Justice Act, as the claim was in substance for monetary relief of less than $50,000 despite seeking declaratory and injunctive relief.

The motion was granted and the appellant was given seven days to perfect his appeal.

The self-represented applicant appeared before the Divisional Court for a judicial review application and indicated he was unwell.

Although he did not request an adjournment and accused the panel of bias, the court decided to adjourn the matter to a fixed date to ensure the applicant was capable of fully presenting his arguments.

The respondent's request to proceed was denied.

The applicant brought a motion under s. 21(5) of the Courts of Justice Act to set aside a judge's decision refusing to strike the respondent's documents or order costs and damages.

The Divisional Court dismissed the motion, finding that the respondent acted reasonably in filing its documents one day after the applicant filed his Certificate of Perfection, causing no prejudice.

The court also noted that damages cannot be ordered in a judicial review application and there was no evidence of judicial bias.

The applicant brought a motion requesting that the panel recuse itself, alleging a reasonable apprehension of bias because two of the judges had previously heard other cases involving him in which he was unsuccessful.

The Divisional Court dismissed the motion, holding that the applicant failed to meet the test for reasonable apprehension of bias, as an adverse decision in a prior case does not demonstrate a lack of impartiality.

The applicant sought judicial review of a procedural ruling made by its Discipline Committee mid-hearing.

The Committee had ruled that the applicant must comply with the notice and consent requirements of s. 35 of the Mental Health Act before tendering psychiatric records as evidence.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the ongoing administrative proceeding.

The appellants appealed an order dismissing their motion for leave to commence a derivative action under s. 246 of the Business Corporations Act.

The motions judge found the motion was statute-barred because it was brought after the expiry of the limitation period.

The Divisional Court dismissed the appeal, holding that the motions judge correctly applied the Supreme Court of Canada's decision in the CIBC trilogy, which established that a nunc pro tunc order is not available when a motion for leave is filed after the limitation period has expired.

The applicant lawyer sought judicial review of a decision by the Law Society Tribunal Appeal Division, which had overturned a Hearing Division decision and ordered her interlocutory suspension pending a conduct application.

The Law Society alleged the applicant was involved in the misuse of trust funds and had facilitated the practice of law by her suspended former partner, with whom she had resumed a romantic relationship.

The Divisional Court dismissed the application, finding that the Appeal Division reasonably concluded the Hearing Division had misapprehended evidence amounting to an error of law, and that the interlocutory suspension was necessary to protect the public interest.

The requester sought access under the Freedom of Information and Protection of Privacy Act (FIPPA) to records held by the Children's Lawyer relating to a custody and access dispute involving his children.

The Children's Lawyer refused, arguing the records were not in the custody or control of the Ministry of the Attorney General (MAG) when acting as counsel for a child.

The Information and Privacy Commissioner (IPC) ordered MAG to issue an access decision, finding the records were under MAG's control.

On judicial review, the Divisional Court held the standard of review was reasonableness, not correctness, as interpreting s. 10(1) of FIPPA is not a true question of jurisdiction.

The Court dismissed the application, finding the IPC's decision reasonable and noting that solicitor-client privilege concerns could be addressed through FIPPA exemptions.

The appellant registered a claim for lien against condominium units owned by the respondent for work supplied to the developer.

The Master discharged the lien and certificate of action, finding the respondent was not an 'owner' under the Construction Lien Act and the appellant failed to properly preserve and perfect the lien by not naming the respondent.

The Divisional Court dismissed the appeal, upholding the Master's findings that the appellant had no valid lien rights against the respondent's units and affirming the Master's award of substantial indemnity costs due to the appellant's conduct.

The applicants brought a motion to set aside an order quashing their application for judicial review of the Minister's decision to apply an Interim Enforcement Policy to certain First Nations regarding hunting and fishing rights.

The Divisional Court dismissed the motion, upholding the motions judge's finding that the Minister's decision was an exercise of prosecutorial discretion and therefore not justiciable absent an abuse of process.

The Court also agreed that the applicant's section 15 Charter claim was bound to fail as the policy did not alter his rights or impose a burden based on race.

Furthermore, the Court held it lacked jurisdiction under the Judicial Review Procedure Act because the policy was not an exercise of a statutory power.

The appellant appealed an Ontario Municipal Board decision ordering him to pay costs personally, despite not being a party to the underlying zoning appeal.

The Board had found him to be the 'real litigant' behind a residents' association.

The Divisional Court allowed the appeal, finding the Board erred in principle by failing to articulate and apply the proper legal test for determining whether a non-party is a 'real litigant' using a 'straw man' to shield themselves from costs.

The costs order against the appellant was set aside.

The appellant denturist appealed the revocation of his licence and a costs award by the Discipline Committee.

The Committee found the appellant had provided dental services outside his scope of practice to multiple patients, including vulnerable children, and submitted 911 false insurance claims totaling over $91,000 using the identities of two dentists.

The Divisional Court dismissed the appeal, finding the penalty of revocation was not unreasonable given the egregious nature of the misconduct, and the costs award of $70,000 (representing 55% of the College's costs) was based on appropriate legal principles.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his discrimination claim against a university and a department chair.

The Tribunal had dismissed the application because it was filed more than one year after the last incident of alleged discrimination, which it determined was the date the applicant was asked to withdraw for academic reasons.

The Divisional Court found the Tribunal's decision to dismiss the application as untimely was reasonable and dismissed the application for judicial review.

The Chief Building Official issued building permits for a body rub parlour in a specific zoning area.

A competing business appealed the decision to the Superior Court, where the appeal judge rescinded the permits, finding the CBO's interpretation of the word 'front' in the zoning by-law to be unreasonable.

The CBO and the permit holder appealed to the Divisional Court.

The Divisional Court allowed the appeal, holding that the appeal judge misapprehended the evidence and failed to properly apply the reasonableness standard of review.

The CBO's interpretation of the by-law was reasonable.

The applicants brought a motion to set aside an order of the motions judge, which added the Williams Treaties First Nations as necessary parties or interveners to an application for judicial review and awarded substantial indemnity costs against the applicants.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact in the motions judge's conclusion that the First Nations would be directly affected by the declarations sought.

The court also upheld the costs award, noting that the applicants persisted with an unnecessary motion despite being on notice that elevated costs would be sought.

The appellants appealed a trial judgment awarding the respondent $25,000 for damage to personal property.

The appellants had purchased a home and, when the occupants did not vacate on the closing date, removed their belongings and left them outside in the rain.

The Divisional Court upheld the trial judge's finding that the appellants acted as gratuitous bailees and were grossly negligent in their treatment of the property.

The appeal was dismissed.

The defendants sought leave to appeal an order refusing their motion for summary judgment regarding a building loss claim.

The motions judge had concluded that summary judgment was not a proportionate means to achieve a just result, as the claim involved issues requiring the weighing of evidence and assessment of credibility, including the application of a covenant to insure.

The Divisional Court dismissed the motion for leave to appeal, finding that the moving parties failed to satisfy either branch of the test under Rule 62.02(4) of the Rules of Civil Procedure.

The defendants moved for a stay of an interlocutory injunction order pending the determination of their motion for leave to appeal.

The injunction restrained the defendants from competing against the plaintiff corporation and from using confidential information or soliciting clients.

The court applied the three-part test for a stay and found that the motion for leave to appeal was unlikely to succeed, the defendants would not suffer irreparable harm that could not be compensated in damages, and the balance of convenience favoured the plaintiffs.

The motion for a stay was dismissed.

The appellant appealed a Master's decision refusing to set aside an administrative dismissal for delay and refusing to add further defendants.

The Divisional Court found no error of legal principle or palpable and overriding error of fact in the Master's application of the four-part Reid test.

The Master had correctly concluded that the appellant failed to adequately explain the delay, failed to prove inadvertence, and failed to rebut the presumption of prejudice.

The appeal was dismissed with costs awarded to the respondents.