Katherine E. Swinton

The applicant, a pharmaceutical wholesaler, sought judicial review of a Varied Rebate Order imposing a financial penalty of over $2.9 million for receiving unlawful rebates from generic drug manufacturers.

The applicant argued that the payments were professional allowances or wholesaler fees, and challenged the Executive Officer's jurisdiction and the procedural fairness of the process.

The Divisional Court dismissed the application, finding that the Executive Officer had jurisdiction to regulate wholesalers and enforce the anti-rebate provisions.

The court also rejected the procedural fairness arguments, finding no reasonable apprehension of bias, and no actual prejudice resulting from delay or redacted disclosure.

The applicants sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Physiotherapists of Ontario, which issued a caution regarding their public communications but did not refer the matter to discipline.

The applicants argued the ICRC exceeded its jurisdiction, exhibited bias, denied procedural fairness, and infringed their Charter rights.

The Divisional Court dismissed the applications, finding the ICRC acted reasonably, did not make improper findings of fact or misconduct, and appropriately balanced Charter values.

The applicant union sought judicial review of an arbitration award that determined two policy grievances regarding the employer's Nuclear Resourcing Policy.

The arbitrator had found that the employer's reassignment of employees to available work within their job classification did not violate the job posting provisions of the collective agreement.

The Divisional Court applied the reasonableness standard of review and held that the arbitrator's interpretation fell within a range of reasonable outcomes, as it followed established arbitral jurisprudence and considered the collective agreement as a whole.

The application for judicial review was dismissed.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had set aside a Hearing Panel's dismissal of professional misconduct complaints related to mortgage transactions.

The Appeal Panel found the Hearing Panel erred in law by incorrectly defining fraud and by concluding a lawyer need not disclose material facts if they reasonably believe the lender already knows them.

The Divisional Court dismissed the appeal, agreeing that a lawyer has a strict duty to disclose all material facts to a lender client, and that the Appeal Panel reasonably concluded the Hearing Panel's legal errors rendered its factual findings unsafe.

The moving party sought to set aside an order quashing his appeal from the Landlord and Tenant Board.

He argued that the Board's consent order was invalid because his former counsel forced him to accept the settlement under duress.

The Divisional Court dismissed the motion, finding that the counsel's firm legal advice did not amount to duress at law and that there was no unfairness in the prior proceedings.

The tenant appealed an order of the Landlord and Tenant Board dismissing his applications as vexatious and finding he had abandoned the rental unit before the landlord changed the locks.

The Divisional Court dismissed the appeal, holding that its jurisdiction is limited to questions of law under s. 210(1) of the Residential Tenancies Act, and the tenant failed to identify any error of law.

The Board had ample evidence to conclude the applications were vexatious and to reject the tenant's credibility regarding alleged rent payments.

The applicant sought judicial review of a decision by AgriCorp awarding it compensation under the AgriStability program, arguing that the participation of AgriCorp staff at multiple stages of the decision-making process created a reasonable apprehension of bias.

The Divisional Court dismissed the application, finding that AgriCorp is essentially a delegate of the Minister exercising executive functions, and the required level of impartiality is that of an 'open mind'.

The court concluded that AgriCorp maintained an open mind and that the staff's involvement did not give rise to a reasonable apprehension of bias.

The respondents were successful on a motion for leave to appeal and the subsequent appeal.

They sought costs of $82,692.85 for the leave motion and $108,534.16 for the appeal.

The appellant argued the amounts were excessive and sought its own costs for the leave motion.

The Divisional Court found the respondents' claimed costs excessive given the focused nature of the issues and the number of hours docketed.

The court fixed costs payable to the respondents at $120,000.00 inclusive of HST and disbursements.

The moving party sought an extension of time to appeal a Small Claims Court judgment regarding a home renovation dispute.

After the initial judgment, the moving party unsuccessfully brought a motion for a new trial before serving a Notice of Appeal out of time.

The Divisional Court applied the five-factor test for extending time to appeal and dismissed the motion, finding the delay was significant, inadequately explained, and the proposed appeal lacked merit as it primarily sought to relitigate factual findings.

The moving parties sought leave to appeal an interlocutory order that struck certain paragraphs of the statement of claim with leave to amend.

The moving parties argued the motions judge erred in considering the amended statement of claim, granting leave to amend, and failing to deal with the breach of fiduciary duty allegation.

The Divisional Court dismissed the motion, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no issue of general or public importance.

The appellant appealed a decision of the Social Benefits Tribunal that upheld the cancellation of his income support and assessed an overpayment of $25,712.30 for allegedly failing to declare his income and assets.

The Divisional Court found that the Tribunal fundamentally misapprehended the evidence, including ignoring documentary proof that the appellant had disclosed his real estate partnership to Ontario Works at the outset.

The Court set aside the Tribunal's decision, cancelled the overpayment for the period prior to the sale of the partnership interest, and remitted the remaining calculations back to the Director.

The appellant appealed a Small Claims Court judgment ordering him to pay $5,814.40 in interest and $5,246.50 in costs on a personal loan.

The Divisional Court found the trial judge made a palpable and overriding error by awarding compound interest at 24% per annum on an outstanding interest balance of $1,840, as there was no evidence of an agreement for compound interest.

The court also set aside the trial costs award, noting the respondent's limited success and conduct that lengthened the proceeding.

The appeal was allowed in part, reducing the judgment to $1,840 plus post-judgment interest.

The appellants appealed a motion judge's decision refusing to strike the respondent's claim under Rule 21.

The respondent had pleaded the common employer doctrine against a group of corporate defendants and their operator.

The Divisional Court dismissed the appeal, agreeing with the motion judge that the application of the common employer doctrine to operators of a group of common employers is a developing area of law, and it was not plain and obvious the claim would fail.

The court also found the claim was pleaded with sufficient particularity.

The tenant appealed a review order of the Landlord and Tenant Board that denied her request for an extension of time to set aside an ex parte eviction order.

The Divisional Court allowed the appeal, finding that the Board erred in law by failing to consider all the mandatory factors under Rule 15.6 of its Rules of Practice, specifically the length of the delay and the prejudice to the parties.

The Court noted the delay was only two days and the tenant, who is on permanent disability and resides in subsidized housing, would suffer severe prejudice if evicted, whereas the landlord would suffer minimal prejudice.

The Court set aside the Board's decision, granted the extension of time, and stayed the eviction order pending a hearing on the merits.

The appellant appealed an order bifurcating the trial of liability and damages, arguing that bifurcation cannot occur without consent when a valid jury notice exists.

The respondent municipality cross-appealed the motion judge's refusal to strike the jury notice, arguing that section 108 of the Courts of Justice Act prohibits jury trials when a municipality is a party.

The Divisional Court granted leave for the cross-appeal and held that the rules and statute operate to prohibit the filing of a jury notice where a municipality is named.

The court allowed the cross-appeal, set aside the jury notice as a nullity, and consequently dismissed the appellant's appeal regarding bifurcation.

The appellant appealed a jury verdict awarding her $2,500 in general damages (netting $0 after the statutory deductible) and a costs award of $140,000 following a motor vehicle accident trial where liability was admitted.

The appellant argued the trial judge erred by failing to charge the jury on the 'Thin Skull Rule' and by making comments that raised a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding the jury verdict was reasonable and the trial judge's comments did not show bias.

The court also granted leave to appeal the costs order but dismissed the appeal, finding the trial judge properly considered the Rule 57.01 factors despite not providing written reasons.

The tenant appealed a decision of the Landlord and Tenant Board dismissing her application for a rent abatement and moving costs.

The tenant had vacated the rental unit shortly after moving in, citing issues with second-hand smoke from other tenants and inadequate heat.

The Divisional Court found no error of law in the Board's determination that the landlord had not been given sufficient time to address the smoking issue and had not interfered with the reasonable supply of heat.

The appeal was dismissed.

The applicant municipality sought judicial review of an interest arbitration award that imposed a 24-hour shift schedule for its suppression firefighters for a two-year trial period.

The Divisional Court applied a reasonableness standard of review and upheld the award.

The court found that the Arbitration Board reasonably relied on the principles of comparability and replication, noting that the vast majority of firefighters in Ontario work 24-hour shifts.

The Board also reasonably discounted the municipality's concerns regarding health, safety, and operational risks, as well as the expert evidence presented.

The application for judicial review was dismissed.

The appellant landlords appealed a Landlord and Tenant Board decision awarding the respondent tenant $1,252 for excess rent and filing costs.

The appellants argued that the tenant was deemed to have accepted the rent increases under s. 118 of the Residential Tenancies Act and that the increases were deemed lawful under s. 136 because more than a year had passed.

The Divisional Court dismissed the appeal, finding that the rent increases were void because the landlords failed to provide the required statutory notice under s. 116, rendering both s. 118 and s. 136 inapplicable.

The appellant appealed an order passing the accounts of the respondent, who acted as Attorney for Property and Estate Trustee for their parents.

The trial judge had awarded the respondent compensation of $129,861.05 and ordered the appellant to personally pay full indemnity costs of $192,000.

The Divisional Court allowed the appeal in part, finding the trial judge erred in awarding a care and management fee for the Estate Trustee period and in calculating a deduction from the appellant's share of the residue.

The Court also granted leave to appeal the costs order, substituting a blended order requiring the appellant to pay partial indemnity costs of $115,200, with the balance of the respondent's legal costs payable from the estate.