Katherine E. Swinton

The moving party tenant sought to set aside an order quashing her appeal, arguing she was not properly served with the motion materials.

The Divisional Court dismissed the motion, finding that the underlying appeal was moot because the tenant had already been evicted and the court lacked jurisdiction to award damages for wrongful eviction on appeal.

The court also declined to set aside the previous costs order, noting the tenant had actual knowledge of the hearing.

No costs were awarded for the present motion.

The applicants, who recently took over the operation of a convenience store, sought judicial review of a Minister's decision applying a tobacco sales prohibition order to them.

The prohibition was issued under section 16 of the Smoke-Free Ontario Act because employees of the prior, unrelated operator had been twice convicted of selling tobacco to minors.

The Divisional Court allowed the application, holding that on a purposive interpretation of the Act, the prohibition can only be applied to a person who has committed at least one tobacco sales offence.

Since the applicants had never been convicted of such an offence, the Minister lacked jurisdiction to apply the prohibition to them.

The appellant tenant appealed an order of the Landlord and Tenant Board terminating her tenancy for causing damage to the rental unit and transferring occupancy to an unauthorized occupant.

The Divisional Court dismissed the appeal, finding that the appellant's arguments regarding the Board's factual findings and exercise of discretion did not raise any questions of law.

The Court also rejected the appellant's arguments that the Board failed to accommodate her disabilities, noting she was able to participate fully in the hearing.

The eviction order was stayed until June 1, 2015, to allow the appellant to find replacement accommodation.

The self-represented appellant requested an adjournment of her appeal from the Landlord and Tenant Board to recast her Notice of Appeal and bring a motion for fresh evidence.

The Divisional Court denied the request, noting the Notice of Appeal was filed over two years prior and the time for perfection had already been extended once.

The court held that granting the adjournment would be contrary to the fair and orderly administration of justice.

The respondent school board sought $60,000 in partial indemnity costs following the dismissal of the applicants' application for judicial review regarding a school closure.

The applicants argued they should be shielded from costs as public interest litigants, or alternatively that costs should be fixed at $15,000.

The Divisional Court rejected the public interest immunity argument, noting the applicants acted partly in self-interest and adopted a 'no holds barred' approach that increased costs.

Applying the principle of proportionality, the court fixed costs payable to the respondent at $35,000 inclusive of disbursements and HST.

The appellant, a utility bill auditing company, appealed a Small Claims Court decision dismissing its claim for unpaid fees and granting the respondent's counterclaim for overpayment.

The parties had a contract where the appellant would receive 50% of savings from implemented recommendations.

The trial judge found the appellant breached implied terms to suggest multiple suppliers and provide ongoing market disclosure.

On appeal, the Divisional Court held the trial judge erred in law by implying terms that were not obvious or necessary for business efficacy, especially given an entire agreement clause.

The court also found the trial judge erred in interpreting the contract's definition of savings by deducting regulated transportation charges.

The appeal was allowed, and the respondent was ordered to pay the outstanding fees.

The applicants, suppression firefighters, sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed their age discrimination applications.

The applicants challenged the mandatory retirement age of 60, arguing the employer failed to accommodate them by not engaging in individualized testing for cardiac risk.

The Divisional Court dismissed the application, finding the Tribunal reasonably relied on established precedent that mandatory retirement for firefighters is a bona fide occupational requirement, and that the applicants failed to provide the necessary individualized medical evidence of extremely low cardiac risk to trigger the narrow exception for accommodation.

The respondent Association brought a motion to quash the applicant's application for judicial review of a Registration Committee decision denying his registration as a professional geoscientist.

The court granted the motion, finding the application manifestly premature because the applicant had an adequate alternative remedy through a statutory appeal to the Council of the Association, which he had already commenced but adjourned.

Costs of $5,000 were awarded to the Association.

The applicants, two bariatric surgeons, sought judicial review of a decision by the Health Professions Appeal and Review Board upholding cautions issued by the College of Physicians and Surgeons of Ontario.

The cautions were issued after the applicants' names and photographs appeared in an advertisement for their employer on a third-party website, contrary to the Advertising Regulation.

The Divisional Court dismissed the application, finding that the Board reasonably concluded the applicants failed to show they took reasonable steps to prevent the improper advertising.

The appellants, estate trustees of the deceased, appealed a trial judgment granting dependants' relief to the respondent, the deceased's common-law spouse.

The deceased had left a $17 million estate but excluded the respondent from her wills following a corporate reorganization.

The trial judge awarded the respondent a property, $100,000 per year for life, and $50,000 every five years for a vehicle.

The Divisional Court dismissed the appeal, finding no error in the trial judge's conclusion that the deceased failed to make adequate provision for the respondent, nor in her assessment of the amount and duration of support or the substantial indemnity costs award.

The applicant sought judicial review of a penalty imposed by the Ontario Racing Commission for a positive drug test involving furosemide.

The Divisional Court found that the Commission erred by treating furosemide as a Class V drug without explanation, as it is not classified as such in the Uniform Classification Guidelines.

The court held the penalty decision was unreasonable, granted the application, and remitted the matter to the Commission for re-determination.

The court determined the costs of an appeal regarding the passing of accounts where success was divided.

The respondent was substantially successful on the compensation appeal, while the appellant was successful on the costs appeal, avoiding approximately $45,000 in personal costs.

As a result, no costs of the appeal were awarded.

However, because the appellant had made an offer to settle the costs issue on the same basis as the court's finding, the appellant was awarded $1,500 for the expense of making written costs submissions.

The applicant, a registered nurse, was found unconscious at work after using narcotics misappropriated from the hospital.

He admitted to a drug addiction.

The College of Nurses of Ontario's Inquiries, Complaints and Reports Committee (ICRC) ordered him to undergo an independent medical examination.

The applicant sought judicial review, arguing that a report from his treating addiction specialist was sufficient and that the order violated his Charter rights.

The Divisional Court dismissed the application, holding that the ICRC's statutory requirement to find 'reasonable and probable grounds' before ordering an examination adequately balances Charter values, and that a treating physician's report does not substitute for an independent medical examination.

The applicants sought judicial review of a school board's decision to close two secondary schools and build a new one, alleging procedural unfairness, lack of statutory authority, and unreasonableness.

The Divisional Court dismissed the application, finding that the board substantially complied with the Ministry's school closure guidelines and its own policies.

The court held that the public consultation process was meaningful and that the failure to disclose certain confidential student survey data did not breach the duty of procedural fairness, as it did not prejudice the applicants' ability to participate.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision finding he created a poisoned work environment through racial and sexual comments.

The Divisional Court found that the adjudicator's conclusions on two of the four allegations were unreasonable, particularly regarding the improper reliance on hearsay evidence to determine the content of a conversation.

As the finding of a poisoned work environment relied on the cumulative effect of all four incidents, the decision was set aside and remitted for a new hearing.

The court also struck down the systemic remedy requiring the applicant to notify former employees of a new human rights policy.

The appellant physician appealed a decision of the Discipline Committee finding he committed acts of professional misconduct, including sexual abuse of a patient.

The Divisional Court allowed the appeal, finding the Committee's reasons were flawed.

Specifically, the Committee failed to distinguish between the complainant's honesty and the reliability of her evidence, subjected the appellant's evidence to a different level of scrutiny, and improperly used after-the-fact conduct to support the complainant's version of events.

The matter was remitted for a re-hearing.

The appellant appealed a Licence Appeal Tribunal decision finding it violated the Liquor Licence Act by serving underage and intoxicated patrons, resulting in a five-day licence suspension.

The appellant argued it had exercised due diligence through staff training.

The Divisional Court dismissed the appeal, finding that the staff failed to properly check identification or assess intoxication, thereby failing to establish due diligence.

The court also upheld the five-day suspension as a reasonable penalty.

The applicant union sought judicial review of an interest arbitration award, arguing the arbitrator denied procedural fairness by failing to disclose a dispute over the cost of a step progression freeze, making a finding without evidence, and refusing to order production of certain financial source documents.

The Divisional Court dismissed the application, finding that the arbitrator's procedures and disclosure rulings were reasonable given the flexible and informal nature of interest arbitration.

The court also found there was sufficient evidence in the parties' briefs to support the arbitrator's findings on the cost of the step progression freeze.

The Public Guardian and Trustee, acting as litigation guardian for a mentally incapable plaintiff, appealed a motion judge's refusal to approve settlements that would dismiss two actions without costs.

The motion judge had held that the plaintiff had an absolute right to a hearing.

The Divisional Court allowed the appeal, finding that there is no absolute right to a hearing and that a litigation guardian has the authority to settle actions if it is in the best interests of the party under disability.

The court approved the settlements.

The applicant sought judicial review of an Information and Privacy Commissioner adjudicator's decision ordering the City of Toronto to disclose portions of a software maintenance log under the Municipal Freedom of Information and Protection of Privacy Act.

The applicant argued the log contained confidential technical information exempt from disclosure under s. 10(1).

The Divisional Court found the adjudicator's decision unreasonable, noting that the adjudicator applied the three-part exemption test inconsistently and failed to provide adequate justification for concluding the information was not supplied by the applicant.

The application was allowed, and the matter was remitted for a new hearing.