Katherine E. Swinton

The City of Ottawa sought costs of a motion brought by the appellants to set aside an order refusing leave to appeal an Ontario Municipal Board decision.

The appellants argued they should be excused from paying costs as public interest litigants.

The Divisional Court rejected this argument, finding that the motion to set aside was totally without merit and effectively sought to reargue the leave motion, which did not constitute public interest litigation.

Costs were awarded to the City of Ottawa fixed at $5,000 on a partial indemnity basis.

The plaintiff sought leave to appeal an order dismissing its motion for default judgment against two defendants noted in default.

The motions judge had dismissed the motion, concluding a trial was necessary to address allegations of fraud for piercing the corporate veil and to prove the compact disks were blank.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision as the motions judge failed to apply the deemed admissions under Rule 19.02(1) and the appeal raised important issues regarding the requirement to prove liability in default proceedings.

The appellants appealed a Master's order dismissing their motion to set aside the Registrar's dismissal of their action for delay.

The action, arising from a construction contract dispute, was dismissed after the appellants failed to set it down for trial by the court-ordered deadline.

The Divisional Court found no error in the Master's application of the Reid test, noting the appellants failed to provide a satisfactory explanation for the delay and bore the primary responsibility to move the litigation forward.

The appeal on the merits was dismissed, but leave to appeal costs was granted and the costs awarded below were reduced to ensure proportionality.

The appellants appealed a decision of the Ontario Securities Commission finding they committed securities fraud and misrepresentation by selling nearly $19 million in securities without disclosing a highly critical financial report.

The Commission ordered significant administrative penalties and disgorgement of over $16.5 million.

On appeal, the Divisional Court upheld the Commission's findings, concluding that the failure to disclose the report while continuing to sell securities was objectively dishonest.

The Court also affirmed that reliance is not required for a misrepresentation finding under the Securities Act and that the Commission has broad public interest jurisdiction to order disgorgement of all funds raised through non-compliance, even if not personally retained by the wrongdoers.

The applicant sought judicial review of two decisions by the respondent college issuing and extending a Notice of Trespass against him.

The application was brought almost three years after the second notice.

The Divisional Court dismissed the application for delay, finding the delay was lengthy, unexplained, and caused prejudice to the respondent.

The registered owners of a property fraudulently discharged a first mortgage held by Computershare and subsequently granted new mortgages to CIBC and Secure Capital.

The application judge found the CIBC mortgage was a 'fraudulent instrument' under the Land Titles Act and restored Computershare's priority.

The Divisional Court allowed CIBC's appeal, holding that because the owners were the registered owners of the fee simple when they granted the CIBC mortgage, they did not falsely hold themselves out as owners in the instrument.

Therefore, the CIBC mortgage was not a fraudulent instrument and was entitled to priority under the deferred indefeasibility scheme of the Land Titles Act.

The defendants sought leave to appeal an order certifying a class proceeding brought by sales agents claiming to be employees under the Employment Standards Act rather than independent contractors.

The defendants argued the motions judge erred in finding employee status to be a common issue and in failing to limit the class definition based on the limitation period.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the certification order.

The moving parties sought an extension of time to file a notice of appeal from a judgment ordering the removal of construction completed without building permits.

The court found that while the moving parties met the first three parts of the test for an extension, the proposed appeal lacked merit.

The application judge had jurisdiction to hear the application, and the new grounds of appeal were not raised before the application judge.

The motion to extend time was dismissed with costs awarded to the respondent.

The applicant sought judicial review of a decision by a Director's Delegate upholding an arbitration decision that denied him Loss of Earning Capacity Benefits (LECBs) under the 1994 Statutory Accident Benefits Schedule.

The applicant argued the Delegate's interpretation of s. 20.1 was unreasonable and that the provision violated s. 15 of the Charter by discriminating on the basis of age.

The Divisional Court dismissed the application, finding the Delegate's interpretation of the regulation was reasonable and that the applicant did not have a vested right to LECBs.

The Court also upheld the Delegate's finding that s. 20.1 did not create a discriminatory distinction based on age.

The plaintiffs appealed a motion judge's decision dismissing their request for a Mareva injunction.

The Divisional Court upheld the decision, finding the motion judge applied the correct legal test requiring a strong prima facie case and made no palpable and overriding error in concluding the plaintiffs failed to meet this burden or the balance of convenience test.

The appeal was dismissed with costs.

The University of Ottawa applied for judicial review of an arbitrator's award concerning overtime pay under Article 20.4 of the collective agreement.

The arbitrator found that the grievors were entitled to overtime because their evening and weekend work was an add-on to their regular schedule, not a modified or temporarily altered schedule.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement and findings of fact were reasonable and owed deference.

The appellant maternal grandparents appealed an order making their two grandchildren Crown wards.

They argued that the definitions of 'Indian' and 'native community' in the Child and Family Services Act violated s. 15 of the Charter by excluding non-status Aboriginals, and that they should have been awarded custody.

The Divisional Court dismissed the appeal, finding no evidentiary basis to establish a s. 15 Charter disadvantage and upholding the trial judge's conclusion that Crown wardship with access was in the children's best interests due to concerns about the grandparents' health and ability to provide permanent care.

The appellant appealed a trial judgment awarding him $21,000 for breach of contract and $32,000 in costs, seeking increased damages, punitive damages, and damages for assault.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of damages or refusal to award damages for a technical assault and alleged fraud.

Costs of the appeal were awarded to the respondents and set off against the costs previously awarded to the appellant.

The appellant appealed a trial judgment awarding him $21,000 for breach of a flooring contract, arguing the trial judge erred by failing to find fraud, failing to award damages for a technical assault, and failing to award punitive damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of damages or findings of fact.

Costs of the appeal were awarded to the respondents and set off against outstanding costs orders owed to the appellant.

The Association of Justices of the Peace of Ontario brought an application for judicial review of the Lieutenant-Governor in Council's response to the Sixth Justices of the Peace Remuneration Commission's report.

The Association challenged the government's rejection of salary and WASH Court day recommendations, and its unilateral implementation of benefit changes.

The Divisional Court held that the government provided a rational basis for rejecting the salary and WASH Court recommendations.

However, the court found the unilateral implementation of benefit changes without independent commission consideration to be unconstitutional, quashing that part of the response and prohibiting implementation until a commission reports on the issue.

A motion by the government to set aside an interlocutory stay order was dismissed.

The appellant, an ODSP recipient, appealed a decision of the Social Benefits Tribunal which held that the 'cost of transportation' for medical travel by private vehicle under O. Reg. 222/98 was limited to operating costs and excluded ownership costs.

The Divisional Court allowed the appeal, finding the Tribunal's interpretation unreasonable.

The Court held that the plain meaning, context, and purpose of the legislation did not support excluding ownership costs from the calculation of the medical transportation benefit, and remitted the matter back to the Tribunal for redetermination.

The appellants appealed a judgment declaring the respondent the legal and beneficial owner of 20% of the appellant company.

The appellants argued the respondent breached a trust agreement with his deceased father-in-law regarding a home purchase, which should block the share transfer.

The Divisional Court agreed with the application judge that the trust issue was irrelevant to the share ownership and that any claim under the trust agreement was statute-barred by limitation periods.

The appeal was dismissed.

The appellant appealed a decision of the Discipline Committee of the Ontario College of Teachers, which found she made false reports of abuse against a fellow teacher and revoked her teaching certificate.

The Divisional Court applied a reasonableness standard of review and found no basis to interfere with the Committee's factual findings or credibility assessments.

The court also upheld the penalty of revocation, finding it fell within the range of reasonable outcomes given the serious nature of falsely accusing a colleague of abuse.

The appeal was dismissed with costs.

Following a trial regarding a share valuation, the court issued an endorsement to finalize the purchase price and determine costs.

The purchase price was set at $1,000,806 based on the expert's revised valuation.

The applicants sought costs on a substantial indemnity basis, but the court awarded partial indemnity costs, finding the respondent's conduct prolonged proceedings but was not reprehensible.

Costs were fixed at $119,129.46, including expert disbursements.

The applicant sought to set aside an order quashing its application for judicial review of a renewable energy approval for a wind project.

The motions judge had quashed the application on the grounds of prematurity because the applicant had appealed the approval to the Environmental Review Tribunal.

The Divisional Court dismissed the motion to set aside, agreeing that the application was premature as the administrative appeal process under the Environmental Protection Act had not yet been completed.