Katherine E. Swinton

The appellant appealed an order declaring a Notice of Garnishment served on a law firm invalid and unenforceable.

The Divisional Court found that the motions judge erred in law by holding that funds in the lawyers' trust account were not subject to garnishment, as the funds were advanced to satisfy a mortgage debt and could have been withdrawn by the debtor.

However, the court upheld the motions judge's decision based on his equitable discretion, finding no error in his conclusion that the garnishment was an oppressive step in the context of the family dispute.

The appeal was dismissed.

The tenants appealed a decision of the Landlord and Tenant Board on review, which had reversed an earlier order dismissing the landlords' application to terminate the tenancy for personal use.

The original Board Member found the landlords' notice was not given in good faith and that they were in serious breach of their responsibilities.

The reviewing Board Member found the original member erred by considering the reasonableness of the landlords' motives.

The Divisional Court allowed the appeal, holding that the reviewing member unreasonably restricted the meaning of 'good faith' by excluding consideration of motives, and unreasonably failed to address the landlords' serious breach of responsibilities.

The original order dismissing the termination application was restored.

The appellant appealed an order discharging a Certificate of Pending Litigation (CPL) and a limited proprietary injunction, which allowed the respondent to sell or encumber a property to fund legal defence costs for herself and her parents.

The appellant argued the motions judge erred in assessing its fraudulent conveyance and resulting trust claims, and in allowing the property's equity to fund the father's legal fees.

The Divisional Court dismissed the appeal, finding no legal error in the motions judge's assessment of the claims and no palpable or overriding error in his exercise of discretion to ensure the defendants had access to legal representation.

The appellants appealed an order of the Landlord and Tenant Board evicting them as unauthorized occupants.

The Divisional Court found that the Board denied the appellants natural justice by refusing to consider their position that they resided on the premises based on an agreement with the landlord, not as tenants or unauthorized occupants.

The Board erred in law by ordering their eviction without any evidentiary basis under section 100 of the Residential Tenancies Act.

The appeal was allowed and a new hearing was ordered.

The applicant applied for judicial review of an arbitrator's decision ordering the disclosure of contested documents.

The applicant argued it was denied procedural fairness because the arbitrator misunderstood its concession regarding the independence of a third party and failed to hold a hearing on the third party's neutrality.

The Divisional Court dismissed the application, finding no denial of procedural fairness as the distinction between neutrality and independence was mere wordsmithing.

The Court also upheld the arbitrator's jurisdiction to order disclosure, finding her interpretation of the grievance reasonable.

The applicants sought an order of mandamus to compel the Ministry of the Environment to issue a Renewable Energy Approval for a wind energy project, or alternatively, to compel a decision.

The applicants argued they had a legitimate expectation of a decision within six months based on a Ministry service standard.

The Divisional Court dismissed the application, finding no clear legal duty to issue the approval and no enforceable right arising from the service standard.

The Court also held that the Director reasonably postponed the decision due to pending litigation regarding the Crown's duty to consult aboriginal people.

Declaratory relief was also denied.

The moving parties brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order dismissing their motion for leave to appeal a costs order.

They argued they were denied natural justice regarding submissions on the responding party's impecuniosity and that the trial judge erred in considering impecuniosity.

The Divisional Court dismissed the motion, finding the motions judge applied the correct test for leave to appeal, made no error in principle, and properly considered impecuniosity as a relevant factor in awarding costs.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had overturned a Hearing Panel's finding that he did not commit fraud in certain real estate transactions.

The appellant argued the Appeal Panel failed to respect the Hearing Panel's credibility finding that he had an honest but mistaken belief that the lenders knew the actual structure of the transactions.

The Divisional Court dismissed the appeal, agreeing with the Appeal Panel that the Hearing Panel's credibility findings were tainted by its flawed legal analysis of fraud, and upholding the referral to a new Hearing Panel.

Costs decision following motions for a certificate of pending litigation (CPL) and for partial summary judgment in a real estate dispute.

The plaintiffs sought costs on a substantial indemnity basis based on an earlier offer to settle.

The court held the plaintiffs were entitled to costs for both motions due to their success but declined to award substantial indemnity costs for the CPL motion because the offer to settle was made after that motion was determined.

However, substantial indemnity costs were awarded for the partial summary judgment motion because the plaintiffs had made a reasonable settlement offer that, if accepted, would have resolved the litigation.

The court fixed costs at $55,000 plus HST and disbursements.

The successful appellant sought costs of the trial and the appeal.

The respondents argued that no trial costs should be awarded because the judgment amount fell within the Small Claims Court jurisdiction.

The Divisional Court rejected this argument, noting the Small Claims Court limit was $10,000 when the claim was issued, the defendants had launched a $65,000 counterclaim, and the plaintiff had made a reasonable early offer to settle for $15,000.

Applying the principle of proportionality, the court awarded the appellant trial costs fixed at $25,000 and appeal costs fixed at $10,000.

Following the dismissal of the action against certain brokerage defendants on a motion for partial summary judgment, those defendants sought substantial indemnity costs of the action and the motion.

The court reaffirmed the principle that costs generally follow the event and held that the successful defendants were entitled to their costs from the plaintiff.

Although the defendants had made several settlement offers, the court determined that partial indemnity costs were appropriate rather than substantial indemnity.

The court assessed reasonable costs for the summary judgment motion and the remaining litigation steps, reducing claimed hours where the defendants had played a limited or watching role.

Total costs were fixed at $60,000 plus HST for fees and $5,249.87 for disbursements, payable by the plaintiff.

The appellants appealed a trial judgment dismissing their personal injury action following a jury verdict that awarded zero damages for a motor vehicle accident.

The appellants argued the verdict was perverse because objective evidence showed a soft tissue injury.

The Divisional Court dismissed the appeal, holding that the jury's assessment of credibility and conclusion that the injury was too slight to warrant compensation were entitled to great deference and supported by the evidence.

The court also found no errors in the trial judge's charge to the jury.

The plaintiffs brought a motion for partial summary judgment seeking specific performance of an agreement of purchase and sale for a commercial property.

The transaction failed to close on the agreed-upon date of August 3, 2012.

The court found that the parties had waived the 'time of the essence' provision by their conduct.

Furthermore, the defendants were not ready, willing, and able to close on that date and therefore could not rely on the provision to terminate the agreement.

The court granted partial summary judgment and ordered specific performance.

The applicant sought judicial review of an Ontario Racing Commission decision upholding a fine and suspension after his horse tested positive for banned substances.

The applicant challenged the validity of the Commission's rule imposing absolute liability on trainers for positive drug tests, arguing that a due diligence defence must be available.

The Divisional Court dismissed the application, holding that the Commission's broad statutory mandate to regulate horse racing in the public interest authorized the creation of an absolute liability rule.

The Court also found the Commission's rejection of the applicant's due diligence defence to be reasonable.

Insurance brokers brought a motion for partial summary judgment seeking dismissal of a negligence claim alleging failure to obtain adequate insurance coverage for a commercial property.

The plaintiff had pleaded that the brokers failed to secure sufficient coverage and failed to advise regarding a co‑insurance clause.

The court found the documentary email record demonstrated the insured provided specific instructions regarding coverage and did not rely on the brokers to assess insurance needs.

The plaintiff also failed to adduce expert evidence establishing breach of the standard of care and could not demonstrate any loss caused by the brokers because the insurance coverage ultimately exceeded the repair costs.

Finding no genuine issue requiring a trial, the court granted summary judgment dismissing the action against the broker defendants.

The appellant registered a construction lien on a property owned by his estranged wife, which was subject to mortgages held by the respondents.

The respondent mortgagees successfully moved to discharge the lien under section 47 of the Construction Lien Act on the basis that it was registered in bad faith.

On appeal, the appellant argued the motion judge erred by not applying the summary judgment test under Rule 20.

The Divisional Court dismissed the appeal, holding that the motion judge properly exercised his broad discretion under section 47 and was not required to apply Rule 20 since the motion did not seek to dismiss the action.

Following the dismissal of his appeal regarding the enforcement of a settlement, the appellant sought to be relieved from paying costs, claiming impecuniosity.

The Divisional Court rejected this argument, finding the appellant failed to provide sufficient evidence of his financial situation.

The court noted the appellant had $30,000 in settlement funds held in trust, which could satisfy the costs award.

Costs were fixed at $5,000 payable to the respondent police services board out of the trust funds.

The Service Employees International Union applied for judicial review of an interest arbitration award that imposed a zero salary increase for the first two years of a collective agreement with 98 nursing homes.

The union argued the arbitrator unreasonably ignored the employers' ability to pay, mischaracterized Ontario's economy, and relied on inappropriate comparable settlements.

The Divisional Court dismissed the application, finding the arbitrator's application of the statutory criteria under the Hospital Labour Disputes Arbitration Act and his ultimate award were reasonable and entitled to a high degree of deference.

The applicant, a private career college, sought judicial review of a Restraining Order issued by the Superintendent of Private Career Colleges.

The Superintendent had issued the order alongside a Notice of Contravention without providing the applicant prior notice or an opportunity to respond.

The Divisional Court held that the application was not premature and found that the Superintendent breached the duty of procedural fairness by failing to allow submissions before issuing the Restraining Order.

However, because the applicant was subsequently given an opportunity to be heard, which cured the procedural defect, the application was dismissed.

No costs were awarded due to the initial breach of fairness.

The applicant physician sought judicial review of a decision by the College's Inquiries, Complaints and Reports Committee ordering a clinical caution and preceptorship.

The applicant argued the College lacked statutory authority and breached procedural fairness by initiating a broader investigation into his practice before resolving an initial patient complaint.

The Divisional Court dismissed the application, finding the College had the authority to initiate the investigation based on reasonable and probable grounds, the request for OHIP records was relevant, and the disposition addressing both record-keeping and clinical concerns was reasonable.