Katherine E. Swinton

The Ontario Human Rights Commission sought judicial review of a Human Rights Tribunal of Ontario decision.

The Tribunal had found that an employee was subjected to a poisoned work environment based on sex and was terminated contrary to the Human Rights Code.

However, the Tribunal only ordered the inoperative corporate employer to pay damages, declining to hold the individual managers and owners jointly and severally liable.

The Divisional Court held that the Tribunal's failure to provide a rational basis for not imposing personal liability on the managers, who had failed to address the poisoned environment and had terminated the employee, was unreasonable.

The matter was remitted to the Tribunal to reconsider the apportionment of joint and several liability.

The Divisional Court issued an addendum to its initial endorsement to correct factual errors in paragraph 4 regarding bypass compensation and stranded transmission connection facilities.

The appellant warranty corporation appealed a Licence Appeal Tribunal decision ordering it to undertake remedial work on a new home's radiant floor heating system.

The Tribunal found the system was a major structural defect and ordered repairs estimated at $245,000.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by failing to apply the $100,000 statutory cap on compensation for major structural defects under Regulation 892.

The matter was remitted to the Tribunal for a rehearing on the issue of remedy alone.

The appellant appealed a trial judgment finding him liable for breaching a non-competition clause in his employment contract and ordering him to repay a $20,000 non-compete payment.

The Divisional Court allowed the appeal, finding the trial judge erred in interpreting the contract.

The appellant had met the conditions for the payment by remaining employed for one year and not competing during that time.

Although the non-competition clause was enforceable and breached later, the respondent proved no damages, so the action was dismissed.

The appellants appealed a decision dismissing their application to reopen a dispute over solicitor fees.

The dispute had previously been resolved through Minutes of Settlement during an assessment proceeding under the Solicitors Act.

The Divisional Court upheld the application judge's finding that attempting to reopen the settled dispute was an abuse of process, noting that a settlement of an assessment is not itself subject to assessment.

The appeal was dismissed with costs awarded to the respondent.

The Municipal Property Assessment Corporation (MPAC) brought a motion for leave to appeal a decision of the Assessment Review Board regarding the assessment of a Canadian Pacific Railway rail yard in Hamilton.

MPAC argued the Board erred in applying a Market Adjustment Factor (MAF) and in finding that CP was not in actual use and occupation of the portion of lands leased to Steelcare Inc. The Divisional Court dismissed the motion, finding no good reason to doubt the correctness of the Board's decision on either issue, as the Board properly applied the relevant provisions of the Assessment Act and case law.

The Court of Appeal issued an addendum to clarify the costs and interest awarded in its previous decision (2012 ONCA 143).

The appellants were awarded costs of the appeal fixed at $6,700, costs of the trial to be agreed upon or assessed, and pre- and post-judgment interest in accordance with the Courts of Justice Act.

The moving party sought leave to appeal an order dismissing its motion to strike the plaintiffs' statement of claim as statute-barred.

The plaintiffs had sued for water damage to their home, and the moving party argued the limitation period began when its technician caused holes in the roof.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's conclusion that discoverability could not be determined on the pleadings alone and required a full factual record.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission revoking its liquor licence.

The Board found the appellant permitted unlawful gambling and the sale, distribution, or consumption of controlled drugs on its premises.

The Divisional Court dismissed the appeal, finding no error of law.

The Court held that the Board reasonably concluded the appellant had constructive knowledge of the drug activity and that the penalty of revocation was reasonable.

The appellant appealed a decision of the Criminal Injuries Compensation Board regarding the quantum of compensation awarded for sexual assaults he suffered as a child.

The appellant argued the Board erred in law by reducing his awards for income loss and pain and suffering due to other contributing factors, and by capping his future therapy costs.

The Divisional Court dismissed the appeal, finding that the Board's consideration of other contributing factors was an unreviewable finding of fact, the Board properly exercised its broad discretion in assessing pain and suffering, and the appellant could apply for a variation if future therapy costs exceeded the cap.

The appellant appealed an order setting aside a previous consent judgment that had dismissed the respondent's action for lack of jurisdiction.

The motions judge had set aside the consent order based on a subsequent change in jurisprudence regarding the court's jurisdiction.

The Divisional Court allowed the appeal, holding that a change in the law does not constitute 'facts arising or discovered after' an order is made under Rule 59.06(2)(a).

The court also found that the respondent's application to re-open the action was barred by cause of action estoppel.

Following a hard-fought application for judicial review, the successful respondent sought costs of $57,647.20.

The applicant argued for a range of $12,000 to $14,000.

The Divisional Court found the respondent's claimed amount excessive for a one-day application, but the applicant's suggested amount too low.

The court fixed costs at $25,000 payable by the applicant to the respondent.

The appellants appealed a procedural decision of the Ontario Energy Board regarding their application to declare bypass compensation provisions of the Transmission System Code ultra vires.

The Board had determined the application was not a standalone application but was linked to an earlier Leave to Construct decision, and gave the appellants three procedural options to proceed.

The Divisional Court dismissed the appeal, finding the Board's decision was interlocutory and discretionary, and raised no true question of law or jurisdiction.

The appellant appealed a decision of the Social Benefits Tribunal upholding the Director's determination that she was not a 'person with a disability' under the Ontario Disability Support Program Act.

The appellant argued the Tribunal erred in law by disregarding a new medical report from her family doctor and by distinguishing between 'ache' and 'pain'.

The Divisional Court dismissed the appeal, finding the Tribunal did not err in law in affording no weight to the medical report as it did not relate to the appellant's condition at the time of the Director's decision, and that the Tribunal's interpretation of the appellant's evidence regarding her symptoms was a matter of weighing evidence, not an error of law.

The plaintiff appealed an order of a motions judge that set aside a Master's order declaring the defendants had waived solicitor/client privilege.

The defendants had sought to amend their statement of defence, filing an affidavit blaming their former solicitor for errors, which the Master found constituted a waiver of privilege.

The Divisional Court allowed the appeal, finding that the motions judge failed to apply the proper standard of review and erred by attempting to case manage the sequence of motions after confirming the Master's finding of waiver.

The Master's order was restored.

The employer applied for judicial review of an arbitrator's award that ordered it to repay funds to an employee.

The employee, a station collector, had erroneously credited customers' debit cards instead of debiting them, resulting in a shortage.

The arbitrator found the employee responsible for the shortage under the collective agreement but held the employer could not recover the funds because it failed to mitigate its loss.

The Divisional Court granted the application and quashed the award, finding the arbitrator's imposition of a duty to mitigate unreasonable in the context of a contractual debt and the collective agreement's clear language.

The applicant cottagers association sought judicial review of the Minister's decision to grant a pit licence to the respondent landowner under the Aggregate Resources Act.

The licence was issued based on a municipal confirmation that the pit was a legal non-conforming use.

The Divisional Court found that the confirmation was based on misinformation, as there was no evidence the property was used as a pit prior to the relevant zoning by-laws.

The Court held the standard of review was correctness and set aside the Minister's decision, referring the matter back for reconsideration.

The applicants sought judicial review of two decisions of the Pay Equity Hearings Tribunal.

The Tribunal had dismissed applications by the unions to eliminate different rates of progression through the wage grids of comparable male and female job classes, holding that the Pay Equity Act does not require the harmonization of wage grids.

The Tribunal also rejected the argument that its interpretation of the Act authorized a contravention of the Human Rights Code.

The Divisional Court dismissed the applications for judicial review, finding that the Tribunal's decisions were reasonable and that the Pay Equity Act does not require or authorize a contravention of the Human Rights Code.

The applicant sought judicial review of the Ontario Energy Board's Demand Side Management guidelines, arguing they were improperly adopted without a hearing and were binding on parties.

The Board, supported by intervenors, brought a motion to quash the application as moot.

The Divisional Court granted the motion to quash, finding that the guidelines were not binding, as evidenced by subsequent rate hearings where the Board departed from them and an affidavit from Board counsel.

The court declined to exercise its discretion to hear the moot application, noting the applicant could challenge the guidelines in future rate proceedings.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his discrimination complaint against the Toronto Transit Commission for being out of time.

The Tribunal found the applicant knew of the alleged discriminatory acts by 1994, despite his claim of discovering them in 2010, and thus the delay was not in good faith.

The Divisional Court dismissed the application, finding no denial of natural justice in the Tribunal's use of a written hearing for a jurisdictional issue, and holding that the Tribunal's decisions on timeliness and reconsideration were reasonable.